Communicated on 17 June 2015

THIRD SECTION

Application no. 29741/10 Guran DJINISOV against the Netherlands lodged on 11 May 2010

STATEMENT OF FACTS

1. The applicant, Mr Guran Djinisov , is a Netherlands national, who was born in 1975 and lives in Harderwijk . He is represented before the Court by Mr J-L.A.M. le Cocq d ’ Armandville , a lawyer practising in Rotterdam .

A. The circumstances of the case

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

1. The criminal proceedings

3. On 26 September 2005 the applicant was arrested and taken into police custody ( inverzekeringstelling ). The applicant was suspected of having committed, or having had involvement in, a number of burglaries.

4. On 29 September 2005 the public prosecutor ( officier van justitie ) sought an order from the investigating judge ( rechter-commissaris ) for the applicant to be taken into initial detention on remand ( inbewaringstelling ) . As relevant to the present case, the charges included involvement (with another person) in one burglary in a home situated at 101 D. Street, in the municipality of E., in which a money-box was stolen containing 3,000 euros (EUR) in cash and a debit card together with its personal identification number (PIN).

5. It was later determined that the debit card stolen with the money-box had been used unlawfully to withdraw EUR 2,940 in cash.

6. The applicant was tried at first instance by the Zutphen Regional Court ( rechtbank ) on 17 January 2006. The charges included the cash withdrawals with the stolen debit card but not the burglary in 101 D. Street, municipality of E. According to the applicant, the public prosecutor admitted at the hearing that although it was likely that the burglary was the work of the applicant and one other person, it could not be excluded that the debit card had been stolen by others and subsequently handed to the applicant.

7. The applicant was found guilty of a number of crimes including the unlawful cash withdrawals with the stolen debit card. He was sentenced to a term of imprisonment. He did not appeal.

2. The confiscation proceedings

a. First instance

8. The public prosecutor addressed a request to the Regional Court for an order to deprive the applicant of any illegally obtained advantage ( vordering tot ontneming van wederrechtelijk verkregen voordeel , hereafter “confiscation order” ) within the meaning of Article 36e of the Criminal Code ( Wetboek van Strafrecht ). The public prosecutor ’ s estimate of the advantage to be confiscated included the applicant ’ s share in the proceeds of the burglary in 101 D. Street , municipality of E. , i.e. one half of the cash sum of EUR 3,000 contained in the money-box and one half of the total sum of EUR 2,940 withdrawn using the stolen debit card.

9. A hearing took place on 25 August 2006. The public prosecutor reduced the sum claimed from the applicant by EUR 1,500 since the applicant had not in fact been charged with the theft of the EUR 3,000 cash sum.

10. Having made deductions on various grounds not relevant to the case before the Court, the Regional Court gave judgment on 8 September 2006 ordering the applicant to pay EUR 850 by way of confiscation of unlawfully obtained advantage.

b. Appeal

11. The applicant appealed to the Arnhem Court of Appeal ( gerechtshof ).

12. The Court of Appeal held a hearing on 21 December 2007. The advocate general ( advocaat-generaal ) asked for the Regional Court ’ s confiscation order to be confirmed in the amount of EUR 850.

13. On 4 January 2008 the Court of Appeal gave judgment. It ordered the applicant to pay EUR 3,120. As relevant to the case before the Court, its reasoning included the following:

“[The applicant] was handed a punitive sentence by judgment of the Zutphen Regional Court (case no. ... ) for property crimes.

It appears from the case file and the discussions on the [advocate general ’ s] claims at the appeal hearing that [the applicant] enjoyed financial advantage from the acts held proven and other criminal acts.

...

In view of the reports aforementioned and the discussions at the appeal hearing, the advantage may be calculated as follows:

Case no. 6 (criminal conviction no. 4 of the sentencing judgment): Burglary in the dwelling situated at 101 D. Street, municipality of E. In the course of this burglary, a money-box was taken that contained EUR 3,000 in cash. In addition, a debit card was taken together with its PIN. The debit card was used to withdraw cash at various locations to a total amount of EUR 2,940. The total advantage unlawfully obtained is EUR 5,940. The Court of Appeal assumes that this burglary was committed by two persons. The Court of Appeal considers it likely ( aannemelijk ) that [the applicant] shared the loot with his accomplice – there being no indication of any other division – and accordingly estimates the advantage unlawfully obtained by him at EUR 2,970. ... ”

c. Appeal on points of law

14. The applicant lodged an appeal on points of law ( cassatie ) with the Supreme Court ( Hoge Raad ). As relevant to the case before the Court, he complained that he had been ordered to pay a sum of money by way of confiscation of an unlawfully obtained advantage that had not been established on the basis of lawful evidence.

15. The Supreme Court gave judgment dismissing the applicant ’ s appeal on 22 December 2009. As relevant to the case before the Court, its reasoning included the following:

“2.3. The findings of the Court of Appeal ... reflect its view that there are sufficient indications that [the applicant] was involved in the theft, qualifiable as a similar offence within the meaning of Article 36e § 2 of the Criminal Code, of the stolen sum of EUR 3,000 from the dwelling situated on D. Street in the municipality of E. and that he enjoyed financial advantage as a result. That view does not reflect an incorrect understanding of the law; nor is it incomprehensible, considering that it follows from the evidence ... that the sum of EUR 3,000 was inside the same money-box as the debit card, which debit card was used shortly after the theft of the money-box in the theft of a sum of money using that debit card, for which [the applicant] was handed a punitive sentence.”

B. Relevant domestic law

16. In its relevant part, Article 36e of the Criminal Code provides:

“1. Upon the application of the Public Prosecutions Service ( openbaar ministerie ) , any person who has been convicted of a criminal offence may be ordered in a separate judicial decision to pay a sum of money to the State so as to deprive him of any illegally obtained advantage.

2. Such an order may be imposed on a person as referred to in paragraph 1 who has obtained an advantage by means of or from the proceeds of the criminal offence in question or similar offences or offences for which a fifth-category fine may be imposed, in connection with which there exist sufficient indications that they were committed by him. ... ”

COMPLAINT

The applicant complains under Article 6 §§ 1, 2 and 3 of the Convention about being made to face financial consequences of a crime with which the prosecution authorities had explicitly declined to charge him for lack of evidence .

QUESTION TO THE PARTIES

Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case (compare mutatis mutandis Geerings v. the Netherlands , no. 30810/03, § 47, 1 March 2007 , and Allen v. the United Kingdom [GC], no. 25424/09, §§ 103-104, ECHR 2013) ?