Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12241/86

by L.

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 April 1986

by L. against the Netherlands and registered on 26 June 1986 under

file No. 12241/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant is a candidate-notary public (kandidaat-

notaris) of Dutch nationality residing in Breda, the Netherlands.

In 1980 the applicant was recommended by the Supervisory Board

of (candidate-) Notaries Public (Kamer van Toezicht over de notarissen

en kandidaat-notarissen) to the Deputy Minister of Justice to be

appointed notary public in Terheijden, which office was vacant at the

time. After having exercised that office for nine months as a

substitute, the applicant withdrew his application for the function in

December 1980 in order to await the outcome of a criminal

investigation which had in the meantime been instituted against him.

The applicant was suspected of having fraudulently signed a deed of

conveyance. For the same reason, the applicant was discharged as a

substitute notary public as of 1 March 1981.

On 28 April 1982 the Breda Regional Court (Arrondissements-

rechtbank) sentenced the applicant to two months' imprisonment and

three years' disqualification from holding office as notary public.

On appeal, the 's-Hertogenbosch Court of Appeal (Gerechtshof)

quashed the judgment of the Regional Court and acquitted the applicant

on 4 July 1983. The Court of Appeal considered that, although a fraud

had taken place, it had not been proven that the applicant had

intended to commit fraud or that he had even been aware of doing so.

It appears that the applicant has since unsuccessfully applied

for several vacant posts as a notary public. The Supervisory Board

apparently each time refused to recommend the applicant to the Deputy

Minister of Justice.

On 4 April 1985, the applicant complained to the Deputy

Minister and asked her to appoint him as notary public in Oosterhout,

a vacant post for which the applicant had applied but for which he had

not been recommended by the Supervisory Board.

Upon her request, the president of the Supervisory Board - who

was president of the Regional Court that had originally convicted the

applicant - informed the Deputy Minister of Justice in a letter dated

8 July 1985, that the Supervisory Board had no confidence in the

applicant as a result of the careless and negligent behaviour which

had led to the criminal proceedings against him.

On 12 July 1985 the applicant's lawyer wrote a letter to the

Deputy Minister complaining that the Supervisory Board had wrongly

failed to recommend the applicant since it had apparently based

itself on damaging facts unknown to the applicant and against which

he had no opportunity to defend himself.

The Deputy Minister of Justice informed the applicant's lawyer

in writing on 23 August 1985 that the Supervisory Board in refusing to

recommend the applicant had properly balanced the various interests

involved and that she therefore had decided not to nominate him to

the office of notary public. The letter does not reveal the reasons

underlying the refusal of the Supervisory Board to recommend the

applicant, but refers to "facts and circumstances which have otherwise

been established" in the criminal proceedings against him. The letter

states that the fact that the applicant was acquitted by the Court of

Appeal does not exclude the possibility that the facts which led to

the criminal proceedings against the applicant might stand in the way

of an appointment as notary public.

On 18 October 1985 the applicant visited the Deputy Minister

of Justice to discuss her refusal to appoint him, but without success.

She did not disclose the contents of the Supervisory Board's letter of

8 July 1985 to the applicant.

In December 1986, in connection with a new application for a

post as notary public by the applicant, the Supervisory Board sent the

applicant a copy of its letter of 8 July 1985.

On 11 May 1987 the National Ombudsman found that the Deputy

Minister of Justice had not acted properly in not enabling the

applicant to examine and to comment upon, the letter of the

Supervisory Board of 8 July 1985.

COMPLAINTS

The applicant complains of the fact that the Supervisory

Board refuses to recommend him to the Deputy Minister of Justice for

appointment as notary public and that the Deputy Minister herself has

refused to nominate him for that office. He claims that in spite of

his acquittal by the Court of Appeal, the attitude of these

authorities constitutes a de facto conviction in that he is not

considered eligible for the office of notary public. Against this

"conviction", the applicant had no opportunity to defend himself. In

this respect, the applicant alleges violations of Article 6 para. 2

and Article 7 para. 1 of the Convention.

THE LAW

1. The applicant has complained that, in spite of his acquittal,

the Dutch authorities do not consider him eligible for the office of

notary public. In this respect he has invoked Article 6 para. 2 (Art.

6-2) of the Convention which provides:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission first notes that it might not be 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, it is open to doubt whether the Deputy

Minister of Justice's letter of 23 August 1985 should be regarded as

the "final decision" for the purposes of the six months' rule in

Article 26 (Art. 26) or whether it gave rise to a continuing situation

to which the six months' rule is inapplicable.

However, even assuming that the latter is the case, the

Commission does not consider, for the reasons set out below, that

the facts submitted by the applicant disclose any appearance of a

violation of the presumption of innocence.

The Commission recalls its established jurisprudence that the

presumption of innocence is not only a guarantee applicable to

criminal proceedings but also a fundamental principle which protects

everybody against being treated by public officials as being guilty of

an offence before this is established according to law by a competent

court (see e.g. No 7986/77, Dec. 3.10.78, D.R. 13 p. 73 and No

9295/81, Dec. 6.10.82, D.R. 30 p. 227). In its last-mentioned

decision, the Commission has in particular held that after a person

has been acquitted, the authorities may not continue to rely on the

charges which have been raised before the criminal court but which

have been proved to be unfounded. In this connection the Commission

has held:

"This rule also applies to courts which have to deal with

non-criminal consequences of behaviour which has been

subject to criminal proceedings. They must be bound by

the criminal court's finding according to which there is

no criminal responsibility for the facts in question

although this naturally does not prevent them to establish

e.g. a civil responsibility arising out of the same facts"

(No.9295/81, loc. cit.).

The Commission notes that, in the present case, the negative

attitude of the Supervisory Board and of the Deputy Minister of

Justice as to the applicant's eligibility for the office of notary

public appears to have been based on the same facts which were the

subject of the criminal proceedings against him in the course of which

the applicant was eventually acquitted.

However, the Commission considers that it is apparent from the

reasons given by the Deputy Minister of Justice, that the refusal to

nominate the applicant as notary public is not based on the criminal

charge of which he was acquitted. The Deputy Minister has interpreted

the facts which led to the criminal charge in the light of the special

responsibilities incumbent on the office of notary public. Thus, a

clear distinction was drawn between the effects of his behaviour in

criminal law and those in the context of the applicant's suitability

to exercise this office.

Consequently, the Commission considers that the position of

the Supervisory Board and the Deputy Minister of Justice does not even

indirectly amount to a finding of criminal guilt on the part of the

applicant. The Commission, therefore, does not find any appearance of

a violation of the presumption of innocence in this complaint.

It follows that this part of the application is manifestly

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

Convention.

2. The applicant has also complained that the fact that he is not

considered eligible as notary public constitutes a violation of Article

7 para. 1 (Art. 7-1) of the Convention.

It is true that Article 7 para. 1 (Art. 7-1) of the Convention

provides that no one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a criminal

offence under national or international law at the time when it was

committed.

However, the Commission recalls with respect to the

applicant's complaint under Article 6 para. 2 (Art. 6-2) of the

Convention, that the facts complained of did not amount to a finding

that he had committed a criminal offence. There is thus no indication

that the applicant has been held guilty of a criminal offence within

the meaning of Article 7 para. 1 (Art. 7-1) of the Convention.

An examination of this complaint as it has been submitted does

not therefore disclose any appearance of a violation of the above

Article. It follows that this part of the application is also

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

27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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L. v. the NETHERLANDS

L. v. the NETHERLANDS

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