Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22078/93

by N.D.

against the Netherlands

The European Commission of Human Rights (Second Chamber)

sitting in private on 6 April 1994, the following members being

present:

MM. S. TRECHSEL, President

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

Mr. K. ROGGE, 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 7 May 1993

by N.D. against the Netherlands and registered on 17 June 1993

under file No. 22078/93;

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 1955, and

currently resides at Kensington, Maryland, USA. Before the

Commission he is represented by J.C. Houtappel, a lawyer

practising in Amsterdam.

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

be summarised as follows.

On 15 January 1986 a fire ravaged five buildings in

Willemstad, Curaçao, the Netherlands Antilles, among which the

"Al Panino" building owned by the applicant and his family. The

building was mortgaged at the Maduro & Curiëls Bank and was

insured against fire and commercial losses as a result of fire

by the insurance company Fatum. An investigation as to the cause

of the fire was made by the police and inspectors of Fatum. As

the circumstances appeared rather suspicious (traces and

declarations by the fire brigade and witnesses indicated that the

fire had started in the part of the building which was in use by

the applicant, there were several seats of the fire, there were

a number of explosions and the fire seemed to have been lit

intentionally) and as it appeared that the applicant found

himself in financial difficulties and had substantively increased

the insured amount shortly before the fire, the applicant was

arrested on the suspicion of arson and detained in police

custody. At some later point in time the prosecution authorities

conditionally dropped the arson charges against the applicant for

lack of evidence.

The Maduro & Curiëls Bank, as mortgage holder and therefore

entitled to receive a part of a possible payment under the

applicant's fire insurance policy, on 22 August 1986 started

civil proceedings against Fatum claiming payment under the fire

insurance policy. Fatum contested this claim, alleging that the

applicant was responsible for the fire by having committed arson.

The prosecution authorities allowed Fatum to make use of

documents on the investigation of the fire by the police in these

civil proceedings. Following interlocutory judgments of 22

February 1988, 15 August 1988 and 6 November 1989, the Court of

First Instance (Gerecht in eerste aanleg) of Curaçao in its

judgment of 25 June 1990 found in favour of Fatum.

The appeal by Maduro & Curiëls Bank was rejected by the

Netherlands Antilles and Aruba Court of Appeal (Gemeenschappelijk

Hof van Justitie van de Nederlandse Antillen en Aruba) on 18

December 1990. The subsequent appeal in cassation by the Maduro

& Curiëls Bank was rejected by the Supreme Court (Hoge Raad) on

19 June 1992.

On 14 October 1988 the applicant started civil proceedings

against Fatum for his share in the insurance claim. Following an

interlocutory judgment of 5 June 1989, the Court of First

Instance, in its decision of 20 August 1990, rejected the

applicant's claim. The Court considered, inter alia, that the

circumstantial evidence as established in the proceedings between

the Maduro & Curiëls Bank and Fatum had remained irrefuted. It

accepted that the applicant bore a certain responsibility for the

fire, which entailed that all his claims must be rejected ("omdat

ons vermoeden als niet weerlegd geldt staat vast dat Noah Dan

merkelijke schuld treft aan de brand en dit brengt met zich dat

alle vorderingen van Noah Dan moeten worden afgewezen").

The applicant's appeal was rejected on 25 June 1991 by the

Netherlands Antilles and Aruba Court of Appeal, which upheld the

judgment of 20 August 1990. It was noted in the judgment that the

applicant did not dispute the facts as established in the case

between the Bank and Fatum as a starting point for the

examination of the case between himself and Fatum.

The applicant's appeal in cassation was rejected by the

Supreme Court on 11 December 1992. Insofar as the applicant

complained about the Court of Appeal's finding in favour of Fatum

on the basis of the assumption that the applicant was to a

certain extent responsible for the fire ("merkelijke schuld") in

view of the circumstantial evidence, the Supreme Court noted that

the Court of Appeal's assumption was based on reasonable grounds

and that the Court of Appeal's findings, after having assessed

the evidence, were understandable and consistent. The Supreme

Court further considered it could not examine complaints made in

the cassation appeal relating to the Court of Appeal's assessment

of the evidence as this belongs to the competence of the trial

courts.

COMPLAINTS

The applicant complains under Article 6 paras. 1 and 2 of

the Convention that he did not receive a fair trial in the civil

proceedings he started against Fatum. He claims in particular

that the domestic courts presumed him guilty of arson although

no criminal proceedings had been brought against him for lack of

evidence, whilst the same presumption was also made in the

proceedings between the Maduro & Curiëls Bank and Fatum in which

he was not even a party and thus unable to defend himself against

the presumption. He also complains that the domestic courts

failed to use in evidence certain expert reports and accepted the

evidence submitted by Fatum. He submits that his case should have

been decided first, i.e. before the proceedings between the

Maduro & Curiëls Bank and Fatum had been decided.

The applicant finally complains under Article 8 of the

Convention that the public prosecutor handed over police reports

of the fire to Fatum, which used them in the civil proceedings

to support its claims.

THE LAW

1. The applicant complains that the presumption of innocence

was not respected in the civil proceedings he started against

Fatum. He relies in this respect on Article 6 para. 2 (Art. 6-2)

of the Convention which provides that:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission observes that the proceedings at issue were

of a civil nature and that they did not involve any determination

of a criminal charge to which the presumption of innocence would

have applied, nor that they have been shown to have had any

influence on any criminal proceedings against the applicant.

However, despite the wording of Article 6 para. 2 (Art. 6-2)

of the Convention, which secures the presumption of innocence to

"everyone charged with a criminal offence", this provision has

been consistently interpreted as also applying to situations

where the person concerned is not or no longer formally charged

with a criminal offence (eg. Eur. Court H.R., Minelli judgment

of 15 March 1983, Series A no. 62, pp. 15 - 16, para. 30). The

presumption of innocence is to be observed not only by the

criminal court trying a case, but also by other public

authorities, including courts other than those which are

competent to determine a criminal charge (cf. Allenet de Ribemont

v. France, Comm. Report 12.10.93, paras. 66-67).

The Commission recalls that a distinction must be made

between civil proceedings and criminal proceedings arising out

of the same events. By virtue of the different standards of proof

normally observed in such proceedings, acquittal at the end of

a criminal trial, because the accused has not been shown guilty

of an offence beyond all reasonable doubt, does not necessarily

preclude that same person's civil liability on the balance of

probabilities (No. 11882/85, Dec. 7.10.87, D.R. 54 p. 162).

The Commission observes that in the present case the civil

trial courts did not express themselves on the question whether

or not the applicant had committed arson. The domestic courts

merely found that that the applicant bore a certain

responsability for the fire, which must be distinguished from the

question whether or not he was guilty of a criminal offence.

It follows that this aspect of the applicant's case is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant states that the domestic courts have violated

Article 6 para. 1 (Art. 6-1) of the Convention by failing to use

in evidence certain expert reports and accepting the evidence

submitted by Fatum. He further submits that his case should have

been decided first, i.e. before the proceedings between the

Maduro & Curiëls Bank and Fatum had been decided.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

"In the determination of his civil rights and obligations

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

by a (...) tribunal (...)."

The Commission recalls that, according to its constant case-

law, the evaluation of evidence is a matter which necessarily

comes within the appreciation of the independent and impartial

courts and cannot be reviewed by the Commission unless there is

an indication that the judge has drawn grossly unfair or

arbitrary conclusions from the facts before him. The task of the

Convention organs is not to interfere with the legal assessment

of a particular claim made by the competent courts under the

domestic law, but rather to ascertain whether the proceedings

considered as a whole, including the way in which the evidence

was taken, were fair (cf. No. 7987/77, Dec. 13.12.79, D.R. 18 p.

31; No. 10000/82, Dec. 4.7.83, D.R. 33 p. 247; No. 10153/82, Dec.

13.10.86, D.R. 49 p. 67).

The Commission finds no indication in the case-file that the

applicant's rights have been disrespected in the civil

proceedings at issue. He has been given every opportunity to

adduce material he considered relevant and to challenge the

material submitted by Fatum and the courts' findings in the

related case between the Maduro & Curiëls Bank and Fatum. As was

noted by the courts, the applicant did not dispute the facts as

established in the case between the Bank and Fatum as a starting

point for the examination of the case between himself and Fatum.

The Commission finally notes that the applicant was free to

assist the Maduro & Curiëls Bank in their proceedings against

Fatum, having regard to the fact that they shared a common

interest, i.e. the payment by Fatum of the insurance claim.

The Commission therefore finds that, insofar as the

applicant did raise his present complaints before the domestic

courts, there is no indication that he did not receive a fair

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

Convention. It follows that this complaint must also be rejected

under Article 27 para. 2 (Art. 27-2) of the Convention as

manifestly ill-founded.

3. The applicant finally complains under Article 8 (Art. 8) of

the Convention that the public prosecutor handed over police

reports of the fire to Fatum.

The Commission notes that the applicant, insofar as he has

substantiated this complaint, did not raise it, either in form

or in substance, during the domestic proceedings.

The Commission, therefore, finds that in this respect the

applicant has failed to exhaust domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention and that this

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

of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second

Chamber

(K. ROGGE) (S. TRECHSEL)

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N.D. v. THE NETHERLANDS

N.D. v. THE NETHERLANDS

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