SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44760/98 by Angelo DEL LATTE and Vincenzo DEL LATTE against the Netherlands

The European Court of Human Rights (Second Section), sitting on 7 October 2003 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 9 November 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Vincenzo Del Latte and Angelo Del Latte, are Netherlands [Note1] nationals, who were born in 1966 and 1967 respectively and live in Volendam , the Netherlands. They are represented before the Court by Mr G. Meijers , a lawyer practising in Amsterdam.

A. The circumstances of the case

The facts of the case, as they appear from the information submitted by the applicant, may be summarised as follows.

1. The criminal proceedings

On 22 June 1996 the applicants went together to the home of one Y., with whom they had quarrelled in a bar earlier. Finding Y. at home, one of them – apparently Vincenzo Del Latte – fired three shots from a gun in his general direction.

The applicants were arrested on the same day and charged with the attempted murder, or in the alternative, the attempted manslaughter of Y. The applicant Angelo Del Latte was in addition charged, in the further alternative, with aiding and abetting the attempted murder or manslaughter by Vincenzo Del Latte.

The applicants were taken into police custody ( inverzekeringstelling ) and thereafter kept in detention on remand ( voorlopige hechtenis ).

A first trial hearing took place before the Haarlem Regional Court ( arrondissementsrechtbank ) on 30 September 1996. On 14 October 1996 the Regional Court gave an interlocutory judgment remitting the case to the Investigating Judge ( rechter-commissaris ) for additional investigations.

A second trial hearing was held on 7 January 1997.

On 9 January 1997 the Regional Court gave judgment acquitting the applicants of all charges. This entailed the applicants’ immediate release from detention on remand.

The prosecution appealed.

Following a hearing on 21 November 1997, the Amsterdam Court of Appeal ( gerechtshof ) gave judgment on 5 December 1997 upholding the Regional Court’s acquittal.

Since in the Netherlands no appeal on points of law is possible against an acquittal (Article 430 § 1 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) – hereinafter “CCP”), this brought the criminal proceedings to an end.

2. The compensation proceedings

Both applicants applied to the Court of Appeal in January 1998, each seeking monetary compensation in an amount of 31,200 NLG (Netherlands guilders) for the time spent in pre-trial detention (Article 89 CCP – see below).

A hearing was held on 24 April 1998.

On 5 June 1998 the Court of Appeal gave decisions dismissing the applicants’ claims. Its reasoning, identical in both decisions, was the following:

“The Court of Appeal finds that the file contains sufficient evidence to prove that the applicant together with his brother went to the home of the victim [Y.] in Edam- Volendam and that shots were fired by one of them through [Y.]’s living-room window with a firearm. At that moment [Y.] was in that living-room. However, it has not been established conclusively ( onomstotelijk ) that the shooting was intended to kill [Y.].

However, in view of the other circumstances as they appear from the file the actions of the applicant and his brother were suitable as threats in the sense of Article 285 of the Criminal Code ( Wetboek van Strafrecht –  hereinafter “CC”).

The behaviour of the applicant together with his brother justified in any case that he was taken into police custody and subsequently held in detention on remand.

The Haarlem Regional Court, and also the Court of Appeal, have had to consider the case on the basis of the indictment prepared by the public prosecutor ( officier van justitie ). This indictment was limited to attempted murder/manslaughter. It did not contain any charge of threatening a crime directed against life.

The Regional Court and the Court of Appeal found insufficient evidence to support the charges contained in the indictment, and the applicant had to be acquitted as a consequence.

In the light of the above the Court of Appeal’s acquittal can be qualified as a ‘technical’ acquittal, since adding a further alternative charge as indicated above would have led to a conviction.

In the circumstances the Court of Appeal finds no reasons in equity to award the applicant any compensation for the police custody and detention on remand.”

B. Relevant domestic law

1. The Criminal Code

Article 285

“1.  Threatening ...  any crime directed against life ... shall be punishable by a term of imprisonment not exceeding two years or a fourth-category fine.  ...”

Article 287

“He who deliberately deprives another of his life shall be guilty of manslaughter and shall be punished by a term of imprisonment of no more than fifteen years or a fifth-category fine.”

Article 289

“He who deliberately and with malice aforethought ( met voorbedachten rade ) deprives another of his life shall be guilty of murder and shall be punished by imprisonment for life or for a term not exceeding twenty years or a fifth-category fine.”

2. The Code of Criminal Procedure

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. Such damage may include non-pecuniary damage.  ...”

Article 350

“... the Regional Court shall deliberate on the basis of the indictment ( op den grondslag der telastelegging ) and in light of its investigation at the hearing as to whether it has been proven that the fact has been perpetrated by the accused, and, if so, what punishable act this constitutes according to the law; if the fact is found to be proven and punishable, then the Regional Court shall deliberate as to whether the accused can be punished and the imposition of a punishment or [non-punitive] measure as provided for by law.”

Article 352

“1.  If the Regional Court finds it not proven that the accused has perpetrated the fact charged in the indictment ( het hem telastegelegde feit heeft begaan ), it shall acquit him.  ...”

Criminal appeal proceedings in the Netherlands being by way of a complete rehearing, the above provisions also apply on appeal (Article 415).

COMPLAINT

The applicants complained under Article 6 § 2 of the Convention that the reasoning of the Court of Appeal reflected a finding that they were guilty of a crime without their guilt having been established according to law.

THE LAW

Article 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 applicants’ complaint was that the decisions of 5 June 1998 found them guilty of criminal wrongdoing after they had been finally acquitted in respect of the same facts, by construing those facts in terms of a crime with which they were never charged and for which they were never tried.

The Government did not dispute the applicability of Article 6 § 2 to the proceedings in question. They submitted, however, that no violation of that provision could be found and that consequently the application was manifestly ill-founded. Referring to the Court’s case-law, in particular its judgments in the cases of Lutz v. Germany , Englert v. Germany and Nölkenbockhoff v. Germany (judgments of 25 August 1987, Series A no. 123), they argued that the Court of Appeal had merely taken into account the suspicion that still weighed against the applicants.

The applicants’ acquittal of attempted manslaughter had not been called into question. In fact, in deciding whether or not to award compensation for pre-trial detention the Court of Appeal had found that the facts as established, while not amounting to attempted manslaughter, could have led to a successful prosecution on a different charge. However, the Court of Appeal was not called upon to give a decision on this basis, and the presumption of innocence was therefore not at issue. It had concluded, as it was fully entitled to in light of the European Court’s Masson and Van Zon v. the Netherlands judgment (28 September 1995, Series A no. 327-A) and its Leutscher v. the Netherlands judgment (26 March 1996, Reports of Judgments and Decisions 1996-II), that there were no reasons in equity to order the payment of compensation to the applicant.

Finally, the Government called upon the Court to refrain from examining decisions such as those complained of too closely. Otherwise, such decisions would in future simply contain less information and would not accurately reflect the reasons which had prompted the courts’ decisions.

Finally, the Court of Appeal’s findings in the present case could hardly be considered unreasonable in the light of the established facts.

The applicants, referring to Hibbert v. the Netherlands ([dec.], no. 38087/97, 26 January 1999), pointed to the distinction made in the Court’s case-law between statements which reflected the opinion that the person concerned was guilty and statements which merely described a state of suspicion. The former infringe the presumption of innocence while the latter did not.

In the decisions complained of, the Court of Appeal had stated unequivocally that it would have been prepared to convict the applicants of “threatening a crime directed against life” had they been charged with it. The applicants maintained that Article 6 § 2 had thereby been violated.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President

[Note1] To be checked.