THIRD SECTION

DECISION

Application no . 73058/13 Hubertus Wilhelminus Petronella SCHREURS against the Netherlands

The European Court of Human Rights (Third Section), sitting on 14 April 2015 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra , Ján Šikuta , Kristina Pardalos , Johannes Silvis , Valeriu Griţco , Iulia Antoanella Motoc , judges,

and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 18 November 2013,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Hubertus Wilhelminus Petronella Schreurs, is a Netherlands national, who was born in 1976 and lives in Tegelen. He was represented before the Court by Mr J. Boksem, a lawyer practising in Leeuwarden.

A. The circumstances of the case

1. The criminal proceedings

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

Between January 2008 and March 2008 the applicant published a number of advertisements on internet web sites offering goods for sale. He obtained payment in advance by bank transfer into bank accounts of accomplices. He withdrew the sums thus received in cash but never delivered the goods purportedly sold.

3 . The applicant was arrested and taken into police custody ( inverzekeringstelling ). Subsequently he was taken into detention on remand ( voorlopige hechtenis ). In all, the applicant spent 188 days in pre-trial detention.

4 . On 21 October 2011 the Roermond Regional Court ( rechtbank ) found the applicant guilty of “making a habit of complicity in money laundering” ( witwassen ; Articles 420 bis and 420 ter of the Criminal Code ( Wetboek van Strafrecht )). It sentenced him to 210 days ’ imprisonment, 22 days of which was suspended for one year, and ordered him to compensate his victims.

5 . The applicant appealed.

6 . On 26 February 2013 the ‘ s-Hertogenbosch Court of Appeal ( gerechtshof ) gave judgment acquitting the applicant of all involvement in money laundering. Its reasoning included the following:

“It is apparent from the information contained in the case file and the investigation at the hearing that the suspect has, by publishing advertisements on the internet and making use of bank accounts of third parties, induced the persons named in the indictment to part with sums of money (by bank transfer) without delivering what was promised in return. Such a course of action may, in the circumstances of the present case, be qualified as fraud ( oplichting ).”

2. The compensation proceedings

7 . On 11 April 2013 the applicant submitted a request to the Court of Appeal for compensation for the damage he claimed to have suffered as a result of his pre-trial detention (Articles 89 and 90 of the Code of Criminal Procedure ( Wetboek van Strafvordering ; see below)).

8 . Having held a hearing in camera on 14 June 2013, the Court of Appeal gave a decision on 28 June 2013 dismissing the request. Its reasoning included the following:

“It appears from the case file that the former suspect was charged with (complicity in) habitual money laundering, or in the alternative, a number of counts of (culpable) money laundering. The former suspect was acquitted on the charges by the judgment of 26 February 2013.

In addition, the Court of Appeal, in its said judgment, found the following:

‘ It is apparent from the information contained in the case file and the investigation at the hearing that the suspect has, by publishing advertisements on the internet and making use of bank accounts of third parties, induced the persons named in the indictment to part with sums of money (by bank transfer) without delivering what was promised in return. Such a course of action may, in the circumstances of the present case, be qualified as fraud. ’

The Court of Appeal takes the view that, considering the content of the said judgment, there are no reasons in equity to award any compensation.”

B. Relevant domestic law

1. The Criminal Code

9 . Provisions of the Criminal Code relevant to the case are the following:

Article 326

“1. He who, with intent unlawfully to gain for himself or for someone else an advantage, induces someone to part with goods of any description, deliver a service, make available information, contract a debt or annul a claim, whether by assuming a false name or a false quality or by cunning tricks or a web of lies, shall be guilty of fraud and shall be punished with a term of imprisonment not exceeding four years or a fifth-category fine [i.e. up to a maximum of 78,000 euros]. ... ”

Article 420 bis

“1. The following shall be guilty of money laundering and punished with a term of imprisonment not exceeding four years or a fifth-category fine:

a. he who conceals or dissimulates the true nature, origin, location, transfer or relocation of an object, or conceals or dissimulates the identity of the person who is entitled to an object or has it in his possession, knowing that the object constitutes the proceedings of an indictable offence ( misdrijf ) directly or indirectly;

b. he who obtains, has in his possession, transfers, transforms or uses an object, knowing that the object constitutes the proceedings of an indictable offence directly or indirectly.

2. The expression ‘ object ’ shall be understood to mean all goods and all pecuniary rights.”

Article 420 ter

“He who makes a habit of money laundering shall be punished with a term of imprisonment not exceeding six years or a fifth-category fine

2. The Code of Criminal Procedure

10 . Provisions of the Code of Criminal Procedure relevant to the case are the following:

Article 89

“1. If a case ends without the imposition of a punishment or measure, or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed, the court may, at the request of the former suspect, grant him compensation at the expense of the State for the damage which he has suffered as a result of police custody, clinical observation or detention on remand ( voorlopige hechtenis ). Such damage may include non-pecuniary damage. ...”

Article 90

“1. Compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so.

2. In the determination of the amount, the personal circumstances ( levensomstandigheden ) of the former suspect shall also be taken into account. ...”

COMPLAINT

11 . The applicant complained under Article 6 § 2 of the Convention that the presumption of innocence had been disregarded.

T HE LAW

Complaint under Article 6 § 2 of the Convention

12 . The applicant alleged a violation of Article 6 § 2 of the Convention, which provides as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

13 . Relying on Rushiti v. Austria , no. 28389/95, 21 March 2000, he took the view that after acquitting him of crimes amounting to “money laundering” in its judgment of 26 February 2013, the Court of Appeal was no longer entitled to find, as it did in its decision of 28 June 2013, that he had committed the crime of “fraud”.

14 . The Court has held, it is true, that “the presumption of innocence means that where there has been a criminal charge and criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence. To this extent, therefore, the presumption of innocence will remain after the conclusion of criminal proceedings in order to ensure that, as regards any charge which was not proven, the innocence of the person in question is respected” (see Allen v. the United Kingdom [GC], no. 25424/09, § 103, ECHR 2013).

15 . In Konstas v. Greece (no. 53466/07, 24 May 2011), the respondent Government based an argument on the lapse of time between the making of the comments there in issue and the examination of the case on appeal. Pointing to the fact that the appeal proceedings were still pending, the Greek Government submitted that the offending comments could not possibly influence the Court of Appeal by the time it delivered its judgment. The Court considered (at § 44) “... that the compatibility of statements with the principle of the presumption of innocence is determined with regard to the time when the statements were made; the time that passes before the competent court examines the merits of the case is ... not a crucial factor in the assessment of the complaint under Article 6 § 2 of the Convention.” The Court observes that the statements allegedly violating the presumption of innocence in that case occurred after a conviction by the first instance court which was not yet final.

16 . In the present case, however, the passage claimed to infringe the presumption of innocence was comprised in the judgment of acquittal given on 26 February 2013. The decision of 28 June 2013 did no more than quote it verbatim. It would have been open to the applicant to lodge an application complaining about the judgment of 26 February 2013.

17 . The Court notes that the applicant applied to it only on 18 November 2013. It follows that the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court by a majority ,

Declares the application inadmissible.

Done in English and notified in writing on 7 May 2015.

Marialena Tsirli Josep Casadevall Deputy Registrar President