CONCURRING OPINION OF JUDGE MARTENS

1. I concur with the Court's finding that Article 6 (art. 6) has not been violated, but not with its reasoning.

2. The applicants' complaints concern non-contentious proceedings before a criminal court.  In those proceedings the applicants asked the Court to grant them financial compensation for the restrictions on their liberty which they had suffered during, and the lawyers' fees which they had incurred in connection with, a criminal prosecution brought against them, their claim being based (solely) on their acquittal.  However, the objective of the impugned proceedings was not enforcement of a civil right to compensation, since under the law of the Netherlands , as under that of seve ral other Contracting States [4] , acquittal does not ipso facto entail a right to compensation for lawfully imposed detention on remand; nor, for that matter, to reimbursement of lawyers' fee s.  In my view that suffices [5] to conclude that Article 6 para. 1 (art. 6-1) was not applicable under its "civil" head.

3. I consider, however, that Article 6 para. 1 (art. 6-1) was applicable under its "criminal" head.  In my opinion the Netherlands proceedings under consideration belong to the same category as those in the Sekanina v. Austria case (3) [6] : proceedings in which the former accused, having been acquitted, is offered the opportunity to ask the trial court to grant him compensation in respect of his detention on remand and the costs of his defence.  Proceedings of this type, which according to that judgment are known in several Contracting States, are to be characterised as a kind of extension of, or appendix to, the criminal proceedings which ended as such with the judgment of acquittal.  Consequently, in conformity with the purposes of the Convention, such proceedings are also governed by Article 6 para. 1 (art. 6-1) under its "criminal" head.

4. Underlying proceedings of this type is, evidently, the notion that acquittal does not ipso facto entail a right to compensation for lawfully imposed detention on remand, but that the question whether equity requires payment of compensation to an acquitted accused and, if so, to what extent depends on all the circumstances of the case and therefore is best left to the discretion of the trial court, which has the fullest knowledge of the circumstances.  I see nothing wrong in such a notion.  Under the Convention there is no right to compensation [7] , and accordin g to the Hauschildt doctrine [8] the mere fact that the decision on compensation is taken by the same judge or judges who acquitted does not affect the tribunal's impartiality, since the questions to be answered when settling these two issues are completely different.

Moreover, under this approach there are good reasons for hearing such cases in camera, since it may very well be that there are facts which, notwithstanding the acquittal, militate against granting the former accused any compensation and which, in order to protect his or her private life, are better not ventilated in public.  The same applies to the requirement in Article 6 para. 1 (art. 6-1) of the Convention that judgment should be pronounced publicly: here again the nature of the particular procee dings justifies an exception [9] .

5.   In sum, although I find that Article 6 para. 1 (art. 6-1) is applicable, I share the Court's conclusion that it has not been violated.

[1] The case is numbered 30/1994/477/558-559.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The third number indicates the case's position on the list of cases referred to the Court since its creation and the last two numbers indicate its position on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 327-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[4] See the Sekanina v. Austria judgment of 25 August 1993, Series A no. 266-A, p. 14, para. 25.

[5] In non-contentious proceedings there is ipso facto no "dispute" (see the separate opinion of Judge De Meyer in the case of H. v. Belgium, Series A no. 127-B, pp. 48 et seq.) and, since the applicants have had access to a court there is no scope for applying the "arguability" test (see my concurring opinion in the case of Salerno v. Italy, Series A no. 245-D, pp. 57 et seq.).

[6] See note 1.

[7] See the Sekanina judgment (note 1 on page 19), pp. 13-14, para. 25.

[8] See the Hauschildt v. Denmark judgment of 24 May 1989, Series A

no. 154, pp. 21-22, paras. 49-50.

[9] In this context I refer to the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 20, para. 58 (third sub-paragraph), where the Court seems to suggest that the nature of the issue involved may be considered decisive in regard to the publicity requirements under Article 6 para. 1 (art. 6-1).