Lexploria

PARTIAL

AS TO THE ADMISSIBILITY OF

Application No. 15346/89

by A.M.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 April 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

Mr. K. ROGGE, Secretary to the Second 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 8 June 1989 by

A.M. against the Netherlands and registered on 4 August 1989 under file

No. 15346/89;

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 citizen, born in 1926 and at present

residing in Rijswijk, the Netherlands. In the proceedings before the

Commission he is represented by Mr. A.J.L.J. Pfeil, a lawyer practising

in Maastricht.

The facts, as submitted by the applicant, may be summarised as

follows.

The applicant was arrested on 10 May 1984. On 11 May 1984, he

was remanded in custody. On 15 May 1984, he was brought before the

investigating judge who charged him with accepting bribes, cheating,

forgery and the use of forged documents. On 22 February 1985, the

Regional Court (Arrondissementsrechtbank) of Maastricht altered the

detention into house arrest (huisarrest). On 25 March 1986, the

Regional Court of Maastricht ordered the termination of this house

arrest.

On 21 May 1987, the Regional Court of Maastricht found the

applicant guilty of the charges of accepting bribes and the use of

forged documents. The applicant was acquitted of the other charges.

The Court sentenced him to one year's imprisonment. Both the applicant

and the public prosecutor appealed against this judgment.

On 7 June 1988, the Court of Appeal (Gerechtshof) of

's Hertogenbosch declared part of the original charge of forgery and

the use of forged documents null and void, and acquitted the applicant

of the remaining charges.

On 6 September 1988, the applicant presented a request for

compensation on the basis of Section 89 of the Code of Criminal

Procedure (Wetboek van Strafvordering) which provides, inter alia, that

an acquitted person can request compensation by the State for the

material and non-material damage, caused by the detention on remand.

Section 90 para. 1 of the same Code provides:

"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."

"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."

On the same day, the applicant also presented a request for

reimbursement of the legal and subsidiary costs provisionally estimated

at 822.316,04 Dutch guilders - among which 804.090,99 guilders for

lawyers' fees - on the basis of Section 591 (a) para. 2 of the Code of

Criminal Procedure. This provision reads:

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

maatregel kan aan de gewezen verdachte ... een vergoeding

worden toegekend voor de schade welke hij ten gevolge van

tijdverzuim door het gerechtelijk vooronderzoek en de

behandelig der zaak ter terechtzitting werkelijk heeft

geleden, alsmede in de kosten van een raadsman."

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

punishment or a measure, compensation may be granted to the

former suspect ... for the damage which he has actually

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

criminal investigation and the trial itself, as well as the

fees of a counsel."

On 9 December 1988, the Court of Appeal of 's Hertogenbosch,

sitting in camera, rejected the request for compensation finding no

reasonable ground for granting it. This decision was served on 12

December 1988. The Court based its decision mainly on the fact that the

applicant had from the very beginning of the investigation misled the

officers involved in the investigation and the courts on a wrong track

and caused an exceptionally elaborate inquiry. Under these

circumstances, the Court found no reason to compel the State to meet

the costs which were mainly due to the applicant's behaviour which had

not only caused great expenses for him but also for the State.

On 9 December 1988 the President of the Court of Appeal granted,

on the basis of Section 591 (a) para. 1 of the Code of Criminal

Procedure, reimbursement of 5.853,55 guilders for travelling and

subsistence costs (reis- en verblijfkosten). It rejected the remainder

of the request.

COMPLAINTS

1. Invoking Articles 3, 5 para. 1(c) and 18 of the Convention, the

applicant complains that the detention on remand served improper

purposes and that he was kept in solitary confinement during a part of

this detention.

Invoking Article 5 para. 2 of the Convention, he also submits

that the detention on remand was based on very vague grounds which made

it difficult to present an adequate defence.

Invoking Article 5 para. 3 of the Convention, he complains that

he was not brought before the investigating judge until 15 May 1984

while he was arrested on 10 May 1984 and remanded in custody on 11 May

1984.

2.2. The applicant complains that he was denied compensation for his

unlawful detention on remand. He submits that he was finally acquitted

and that he suffered substantial material and non-material damage. He

invokes Articles 5 para. 5 of the Convention.

3. Stating that there is a right to compensation for the lawyers'

fees after acquittal in Dutch legal practice, the applicant also

complains that the refusal of his request for compensation under

Article 591 (a) of the Code of Criminal Procedure violates his right

of property guaranteed by Article 1 of Protocol No. 1.

4. The applicant further complains that the refusal to grant him

compensation for the detention on remand and reimbursement of the

lawyers' fees violates Article 6 para. 2 of the Convention which

protects the presumption of innocence.

5. The applicant also complains that the refusal of his request for

reimbursement of lawyers' fees violates Article 6 paras. 1 and 3 (c)

of the Convention. He submits that he had enormous expenses for his

legal assistance and had to incur great debts. He considers that there

is an inequality of arms since the public prosecution is not hindered

by financial restraints.

6. The applicant also complains that no appeal was possible against

the decisions of 9 December 1988. He invokes Article 2 of Protocol No.

7 and Article 6 of the Convention.

7. The applicant finally complains that both his requests for

compensation for detention on remand and for reimbursement of lawyers'

fees were not examined fairly and in public by an impartial tribunal.

He invokes Articles 13 and 6 paras. 1 and 3 (a) and (d) of the

Convention.

THE LAW

1.1. The applicant complains that the detention on remand served

improper purposes and that he was kept in solitary confinement during

part of this detention. He adds that the detention was based on very

vague grounds and that he was not brought before the investigating

judge until 15 May 1984 while he was arrested on 10 May 1984 and

remanded in custody on 11 May 1984. He invokes Articles 3, 18 and 5

paras. 1 (c), 2 and 3 (Art. 3, 18, 5-1-c, 5-2, 5-3) of the Convention.

However, 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".

In the present case, the Commission is not called upon to

determine whether the final decision regarding the detention on remand

is the decision of 22 February 1985 by which the Regional Court

replaced the detention on remand by house arrest, or the decision of

25 March 1986 terminating this arrest, as the application was submitted

to the Commission on 8 June 1989, that is more than six months after

the date of either 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.

2.2.2.Invoking Article 5 para. 5 (Art. 5-5) of the Convention, the

applicant complains that he was denied compensation for his unlawful

detention on remand.

Article 5 para. 5 (Art. 5-5) of the Convention is in the

following terms:

"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."

It appears clearly from the text of Article 5 para. 5 (Art. 5-5)

that the application of the provision presupposes the establishment of

a breach of one of the preceding paragraphs of Article 5 (Art. 5).

Insofar the applicant has alleged a violation of Article 5 paras.

1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) before the Dutch courts, the

Commission first observes that no breach of these provisions has been

established by these courts.

Secondly, the Commission has not found any violation of Article

5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4).

In these circumstances, in the absence of a finding of a breach

of Article 5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4).

of the Convention, the applicant is not 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.

3. Stating that there is a right to compensation for the lawyers'

fees after acquittal in Dutch legal practice, the applicant also claims

that the rejection of his request for compensation under Section 591

(a) of the Code of Criminal Procedure violates his right of property

guaranteed by Article 1 of Protocol No. 1 (P1-1), which stipulates:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

The Commission has already recognised that a "claim" or a "debt"

may constitute "possessions" within the meaning of Article 1 of

Protocol No. 1 (P1-1) (No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146; No.

7775/77, Dec. 5.10.78, D.R. 15 p. 143).

However, the Commission notes that in the present case the

applicant, who hoped to be granted compensation for lawyers' fees, has

not shown that he was at any time entitled to compensation on any

ground whatsoever. The judgment of the Court of Appeal of 7 June 1988

has indeed not created any right to compensation for lawyers' fees; it

has only created a possibility to obtain such a compensation, since

Section 591 (a) para. 2 of the Code of Criminal Procedure provides that

"compensation may be granted". Since the applicant's claim for

compensation for legal costs could not be considered to be based on an

established right, the decision of 9 December 1988 cannot have had the

effect of depriving him of property of which he was the owner (cf.,

mutatis mutandis, No. 7822/77, Dec. 11.7.77, unpublished).

There is therefore in the instant case no appearance of a

violation of Article 1 of Protocol No. 1 (P1-1) and this complaint is

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

(Art. 27-2) of the Convention.

4. The applicant also complains that the refusal to grant him

compensation for the detention on remand and reimbursement for lawyers'

fees violates Article 6 para. 2 (Art. 6-2) of the Convention which

protects the presumption of innocence. He explains that this refusal

implicitly leads to a declaration of guilt all the more so since the

requests were not examined fairly and publicly.

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."

The Commission first notes that it cannot be excluded from a

reading of the text of this Article that it may impose an obligation

to respect the presumption of innocence on tribunals which are not

directly involved in the determination of criminal charges in a

particular case. This follows from the very general terms of this

provision, both in its English and French texts (cf. No. 10427/87, Dec.

12.5.86, D.R. 47 pp. 85, 91). The application of Article 6 para. 2

(Art. 6-2) is therefore not limited to procedures where a prosecution

ends in the conviction or acquittal of the accused.

However, this provision does not give any right to reimbursement

of an accused's necessary expenses in case the proceedings against him

are discontinued or do not end in a conviction nor does it create any

obligation for the Contracting State to pay in such cases compensation

for lawful detention on remand (No. 9531/81, Dec. 6.10.82, D.R. 31 p.

213; No. 10107/82, Dec. 4.12.85, D.R. 48 p. 35; No. 12397/86, Dec.

14.10.88, unpublished).

It follows that this part of the application is again manifestly

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

Convention.

5. Invoking Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the

Convention, the applicant further complains that the rejection of his

request for reimbursement of lawyers' fees constitutes an inequality

of arms in the criminal proceedings against him, as the public

prosecutor is not hindered by financial restraints.

The Commission first notes that it is not required to decide

whether or not the facts of the case disclose any appearance of a

violation of the Convention in the criminal proceedings instituted

against the applicant as the final decision regarding these proceedings

was given by the Court of Appeal on 7 June 1988, which is more than six

months before 8 June 1989, the date on which the application was

submitted to the Commission.

Finally, the Commission considers that the refusal to afford

reimbursement of lawyers' fees after discharge or acquittal cannot have

had the effect of rendering the former criminal proceedings

retrospectively unfair in which proceedings in any event the applicant

had not requested legal aid.

It follows that this part of the application must also be

rejected under Article 27 paras. 2 and 3 (Art. 27-2, 27-3) of the

Convention.

6. The applicant also claims that no appeal was possible against the

decisions of 9 December 1988. He invokes Article 2 of Protocol No. 7

and Article 6 (P7-2, 6) of the Convention.

However, the Commission first notes that the Netherlands are not

a party to Protocol No. 7 (P7).

Secondly, the Commission recalls that Article 6 (Art. 6) of the

Convention does not guarantee a right to an appeal (cf. No. 8603/79,

8722/79, 8723/79 and 8729/79, Dec. 18.12.80, D.R. 22 p. 147).

It follows that the application is in this respect incompatible

with the provisions of the Convention and must be rejected under

Article 27 para. 2 (Art. 27-2).

7. The applicant finally complains that his requests for both

compensation for detention on remand and reimbursement of lawyers' fees

were not examined fairly and in public by an impartial tribunal. He

invokes Articles 13 and 6 paras. 1 and 3 (a) and (d) (Art. 13, 6-1, 6-

3-a, 6-3-d) of the Convention.

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

as relevant, 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."

As there can be no doubt that the proceedings did not concern a

criminal charge against the applicant, the Commission has first to

consider whether there was a dispute concerning a right and, if so,

whether the right was a civil right.

The Commission considers that it cannot, on the basis of the

file, determine whether there was a dispute concerning a civil right

and, if so, whether there has been a violation of Article 6 (Art. 6)

in these proceedings without the observations of both parties.

The Commission therefore adjourns this part of the application.

For these reasons, the Commission,

by a majority, DECIDES TO ADJOURN the examination of the

complaint under Article 6 para. 1 (Art. 6-1) of the

Convention as to the proceedings concerning the applicant's

requests for compensation after acquittal;

unanimously, DECLARES INADMISSIBLE the remainder of

the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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M. v. THE NETHERLANDS

M. v. THE NETHERLANDS