A.M. AND J.Z. v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Applications Nos. 15346/89 & 15379/89

                      by A.M. & J.Z.

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting

in private on 8 January 1993, the following members being present:

             MM.  S. TRECHSEL, President of the Second Chamber

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J.-C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

             Mrs. G. H. THUNE

             MM.  F. MARTINEZ

                  L. LOUCAIDES

                  J.-C. GEUS

             Mr.  K. ROGGE, Secretary to the Second Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application No. 15346/89 introduced on 8

June 1989 by A.M. against the Netherlands and registered on 4 August

1989 and to the application No. 15379/89 introduced on 2 June 1989 by

J.Z. against the Netherlands and registered on 18 August 1989;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The first applicant is a Dutch citizen, born in 1926 and at

present residing in Rijswijk, the Netherlands.  In the proceedings

before the Commission he is represented by Mr. A.J.L.J. Pfeil, a lawyer

practising in Maastricht, the Netherlands.

      The second applicant is a Dutch citizen, born in 1919 and at

present residing in Meeuwen-Gruitrode, Belgium.  In the proceedings

before the Commission he is represented by Mr. A. Duynstee, a lawyer

practising in Maastricht.

      The facts, as submitted by the parties, may be summarised as

follows.

      The first applicant was arrested on 10 May 1984.  On 15 May 1984,

he was brought before the investigating judge (rechter-commissaris) who

charged him with having accepted bribes, fraud, forgery and use of

forged documents.  On 21 May 1987, the Regional Court

(Arrondissementsrechtbank) of Maastricht convicted the applicant of

having accepted bribes and the use of forged documents and sentenced

him to one year's imprisonment.

      In the same factual context, the second applicant was arrested

on 11 May 1984 and charged with bribery of a public official, forgery

and use of forged documents.  On 24 June 1987, the Regional Court of

Maastricht convicted the applicant of bribery and forgery and sentenced

him to one year imprisonment.

      Both the applicants and the public prosecutor appealed against

the judgments.  On 7 June 1988, the Court of Appeal (Gerechtshof) of

's-Hertogenbosch declared some of the charges against the first

applicant null and void and acquitted him of the remaining charges.

The second applicant was acquitted of all charges.

      On 5 September 1988, the second applicant presented a request for

compensation on the basis of Section 89 of the Code of Criminal

Procedure (Wetboek van Strafvordering) which provides, inter alia,

that an acquitted person can request compensation by the State for

material and non-material damage caused by the detention on remand.

Section 90 para. 1 of the same Code provides:

      "1. De toekenning van een schadevergoeding heeft steeds

      plaats, indien en voorzover daartoe, naar het oordeel van

      de rechter, alle omstandigheden in aanmerking genomen,

      gronden van billijkheid aanwezig zijn".

      "1. Compensation is awarded where, and insofar as, in the

      opinion of the judge, taking all circumstances into

      account, there are equitable grounds for it."

      On the same day, the second applicant also presented a request

for reimbursement of the legal and subsidiary costs provisionally

estimated at 486.394,60 Dutch guilders - among which 470.000 guilders

for lawyers' fees - on the basis of Section 591 (a) para. 2 of the Code

of Criminal Procedure.  This provision provides:

      "2. Indien de zaak eindigt zonder oplegging van straf of

      maatregel kan aan de gewezen verdachte ... een vergoeding

      worden toegekend voor de schade welke hij ten gevolge van

      tijdverzuim door het gerechtelijk vooronderzoek en de

      behandeling der zaak ter terechtzitting werkelijk heeft

      geleden, alsmede in de kosten van een raadsman."

      "2. If a case comes to an end without imposition of a

      punishment or measure, compensation may be granted to the

      former suspect ... for the damage which he has actually

      suffered as a result of the loss of time due to the

      judicial criminal investigation and the trial itself, as

      well as the costs of a counsel."

      On 6 September 1988, the first applicant presented a request for

compensation on the basis of Section 89 et seq. of the Code of Criminal

Procedure and a request for reimbursement of the legal and subsidiary

costs provisionally estimated at 822.316,04 Dutch guilders - among

which 804.090,99 guilders for lawyers' fees - on the basis of Section

591 (a) para. 2 of the Code of Criminal Procedure.

      On 9 December 1988, the Court of Appeal of 's-Hertogenbosch,

sitting in camera, rejected both requests for compensation for

detention on remand, finding no reasonable ground for granting it.

      On 9 December 1988, the President of the Court of Appeal of

's-Hertogenbosch granted, on the basis of Section 591 (a) para. 2 of

the Code of Criminal Procedure, reimbursement of 5.853,55 guilders for

travelling and subsistence costs (reis- en verblijfkosten) to the first

applicant and reimbursement of 3.559,80 guilders for travelling and

subsistence costs to the second applicant.  He rejected the remainder

of the requests.

COMPLAINTS

      Invoking Article 6 of the Convention, the applicants complain

that their respective requests for compensation for detention on remand

and reimbursement of their legal and subsidiary costs were not examined

fairly and in public by an impartial tribunal.

      The first applicant also invokes Articles 13 of the Convention

on this point.

PROCEEDINGS BEFORE THE COMMISSION

      Application No. 15346/89 was introduced on 8 June 1989 and

registered on 4 August 1989.

      Application No. 15379/89 was introduced on 2 June 1989 and

registered on 18 August 1989.

      The Commission (Second Chamber) decided on 1 April 1992 to bring

the applications to the notice of the respondent Government and to

invite them to submit written observations on the applicants' complaint

that their respective requests for compensation for detention on remand

and reimbursement of their legal and subsidiary costs were not examined

fairly and in public by an impartial tribunal.  The Commission declared

the remainder of the applicants' complaints inadmissible.

      The Government submitted their observations on application No.

15346/89 on 12 June 1992.  The observations in reply by the first

applicant were received on 10 September 1992.

      The Government submitted their observations on application No.

15379/89 on 19 June 1992.  The observations in reply by the second

applicant were received on 9 October 1992.

THE LAW

      Invoking Article 6 (Art. 6) of the Convention, the applicants

complain that their respective requests for compensation for detention

on remand and reimbursement of their legal and subsidiary costs were

not  examined fairly and in public by an impartial tribunal.

      The first applicant also invokes Articles 13 (Art. 13) of the

Convention on this point.

      The Commission has first examined the complaint under Article 6

(Art. 6) of the Convention, which provides insofar as relevant:

      "1.  In the determination of his civil rights and

      obligations or of any criminal charge against him, everyone

      is entitled to a fair and public hearing (...) by an

      independent and impartial tribunal established by law."

      The Government have first submitted that the application should

be rejected on the basis of the exhaustion rule stipulated in Article

26 (Art. 26) of the Convention, since the applicants did not lodge an

action before the civil courts on the basis of Section 1401 of the

Civil Code (Burgerlijk Wetboek) which provision dealt with tort.

Insofar as they are of the opinion that they were unlawfully detained

they could have claimed compensation for tort.  The Government refer

to a judgment of 7 April 1989 of the Supreme Court (Hoge Raad) which

ruled that Section 89 et seq. of the Code of Criminal Procedure do not

exclude a claim on the basis of Section 1401 of the Civil Code.

      The first applicant states on this point that the judgment of 7

April 1989 was only published in 1990, thus after the introduction of

his application to the Commission.  Before this judgment, the adage

"lex specialis derogat legi generali" applied.

      The Commission does not question the fact that the applicants

could address themselves to the civil court with an action based on

Section 1401 of the Civil Code.  In the Commission's opinion by raising

the ground of non-exhaustion of domestic remedies, the Government are

arguing that Dutch law provides for an additional remedy to obtain

compensation for detention and that this remedy is an effective one.

The Commission finds, however, that the applicants' complaints relate

to alleged deficiencies in the proceedings which they actually

instituted.

      The Commission therefore considers that the application cannot

be declared inadmissible for non-exhaustion of domestic remedies.

      As to the substance of the complaint, the Government submit that

the requests of the applicants can neither be seen as based on an

established right under the Dutch law nor as a "civil right" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.  The

Government recalls that compensation for detention on remand and

reimbursement of the legal and subsidiary fees are only awarded insofar

as the court is of the opinion that there are equitable grounds for

doing so.  They also explain that the main objective of the procedure

in Section 591 (a) of the Code of Criminal Procedure is to enable the

reimbursement of legal and subsidiary costs in cases where an accused

person has been lawfully - though wrongfully, as later appears -

subjected to a criminal investigation and prosecution. Referring, inter

alia, to a former decision of the Commission (No. 10923/87, Dec.

6.5.85, unpublished), the Government point out that a request pursuant

to Section 89 et seq. of the Code of Criminal Procedure does not

require that the law has been violated.  They add that such a request

is in no way assimilated or comparable to private law claims for

damages resulting from tort. Furthermore it has to be noted that the

right to liberty is no civil right within the meaning of Article 6

(Art. 6) of the Convention.

      The applicants are of the opinion that their requests must be

seen as being based on a "civil right" within the meaning of Article

6 (Art. 6) of the Convention.  The second applicant recalls that the

concept of "civil right" is autonomous and that the legislation of the

State concerned is therefore not decisive for this question.  Recalling

that the requests concerned the right to compensation for lawful -

though wrongful, as it later appeared - detention and the compensation

of the damages caused by the prosecution, he states that such

proceedings must be considered as involving civil rights and

obligations in many other Member States.

      After an examination of this issue in the light of the parties'

submissions, the Commission considers that it raises questions of fact

and law which can only be determined by an examination of the merits.

It follows that this complaint cannot, therefore, be declared

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for

inadmissibility have been established.

      Concerning the first applicant's complaint under Article 13

(Art. 13) of the Convention the Commission recalls that this provision

guarantees an effective remedy to anyone claiming a violation of the

Convention, provided that such a claim is arguable (Eur. Court H.R.,

Klass and others judgment of 6 September 1978, Series A no. 28, p. 29

para. 64). The Commission also recalls that it is well established that

where the right claimed is of a civil character, the guarantees of

Article 13 (Art. 13) are superseded by the more stringent requirements

of Article 6 para. 1 (Art. 6-1) of the Convention (cf. No. 11468/85,

Dec. 15.10.86, D.R. 50 p. 199). As the Commission has just found that

the question whether a decision pursuant to Sections 89 et seq. and 591

(a) determines civil rights and obligations requires an examination of

the merits. Therefore also the complaint under Article 13 (Art. 13) of

the Convention must be declared admissible.

      For these reasons, the Commission, unanimously

      DECIDES TO JOIN THE REMAINDER OF THE APPLICATIONS 15346/89 and

      15379/89;

      and, by a majority

      DECLARES THE REMAINDER OF THE APPLICATIONS ADMISSIBLE.

Secretary to the Second Chamber     President of the Second Chamber

    (K. ROGGE)                            (S. TRECHSEL)

 

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