A.M. v. the NETHERLANDS ; J.V.Z. v. the NETHERLANDSDISSENTING OPINION OF MM. C.A. NØRGAARD, F. ERMACORA,
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Document date: July 4, 1994
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DISSENTING OPINION OF MM. C.A. NØRGAARD, F. ERMACORA,
H.G. SCHERMERS, F. MARTINEZ, MRS. J. LIDDY,
MM. M.P. PELLONPÄÄ, I. BÉKÉS, J. MUCHA AND D. SVÁBY
We regret to be unable to agree with the conclusion of the
majority of the Commission that there has been a violation of Article 6
para. 1 of the Convention.
As regards the question whether the proceedings at issue related
to a "civil right" within the meaning of Article 6 para. 1 of the
Convention we note that according to the wording of Sections 89, 90 and
591 (a) of the Code of Criminal Proceedings compensation may be awarded
provided the competent court finds that there are equitable grounds for
such an award. In our opinion, there is no support in this wording for
the contention that under Dutch law an acquitted person has a right to
compensation for having been detained on remand and to reimbursement
of the fees of legal and subsidiary cost in respect of the criminal
proceedings against that person or for any other damage arising from
those proceedings.
In the second place, claims pursuant to Articles 89 and 591 (a)
of the Code of Criminal Proceedings do not require that the law has
been violated. These claims are thus in no way assimilated or
comparable to private law claims for damages resulting from tort.
Furthermore it is impossible to infer from the Convention system the
existence of a general right of a civil nature to compensation for
damage caused by detention on remand where the proceedings end in an
acquittal or when no punishment or measure is imposed, since the
Convention itself restricts the right to compensation for damages to
cases where a deprivation of liberty was contrary to the provisions of
Article 5 of the Convention.
In our opinion it is also impossible to infer from any other
provision of the Convention including Article 6 the existence of a
general right for compensation or reimbursement of the legal and
subsidiary costs after acquittal. Finally, the compensation claimed
is not founded on an infringement of any "pecuniary" right nor can the
outcome of the proceedings at issue be regarded as decisive for the
applicants' private rights and obligations. We are therefore of the
opinion that no civil right was involved in the present case.
For these reasons, we consider that Article 6 para. 1 of the
Convention is not applicable to the proceedings at issue.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
2 June 1989 Introduction of application No. 15379/89
8 June 1989 Introduction of application No. 15346/89
4 August 1989 Registration of application No. 15346/89
18 August 1989 Registration of application No. 15379/89
Examination of admissibility
1 April 1992 Commission decision to communicate the
applications to the respondent Government
and to invite the parties to submit
observations on admissibility and merits
in respect of the complaint under
Article 6 para. 1 and to declare the
remainder of the applications inadmissible
12 June 1992 Government's observations on application
No. 15346/89
19 June 1992 Government's observations on application
No. 15379/89
10 September 1992 Observations in reply on application
No. 15343/89
9 October 1992 Observations in reply on application
No. 15379/89
8 January 1993 Commission's decision to join the
applications and to declare them
admissible
Examination of the merits
19 February 1993 Decision on admissibility transmitted to
parties. Invitation to parties to submit
further observations on the merits
2 April 1993 observations by applicant in application
No. 15379/89
4 May 1993 Government's observations
29 June 1993 Additional submissions by the Government
6 September 1993 Additional observations in application
No. 15379/89
23 September 1993 Additional observations in application
No. 15346/89
20 October 1993 Commission's consideration of state of
proceedings and decision to put an
additional question to the parties
25 January 1994 Government's answer to the Commission's
question
21 February 1994 Applicant's answer to the Commission's
question in application No. 15379/89
31 March 1994 Applicant's answer to the Commission's
question in application No. 15346/89
29 June 1994 Decision of the Second Chamber of the
Commission to relinquish jurisdiction to
Plenary Commission
4 July 1994 Plenary Commission's deliberations on the
merits, final vote and adoption of the
Report