In the case of Leutscher v. the Netherlands (1),
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of Court B (2),
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr S.K. Martens,
Mr M.A. Lopes Rocha,
Mr P. Jambrek,
Mr K. Jungwiert,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 24 November 1995 and
22 February 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 52/1994/499/581. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the
Court since its creation and on the list of the corresponding
originating applications to the Commission.
2. Rules of Court B, which came into force on 2 October 1994,
apply to all cases concerning the States bound by Protocol No. 9
(P9).
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PROCEDURE
1. The case was referred to the Court on 8 December 1994 by
the European Commission of Human Rights ("the Commission"),
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 17314/90) against the Kingdom of the
Netherlands lodged with the Commission under Article 25 (art. 25)
on 29 June 1990 by a Netherlands national, Mr Jakob Koos
Leutscher.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 paras. 1 and
2 (art. 6-1, art. 6-2) of the Convention.
2. In response to the enquiry made in accordance with
Rule 35 para. 3 (d) of Rules of Court B, the applicant designated
the lawyer who would represent him (Rule 31).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On
27 January 1995, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr R. Bernhardt, Mr L.-E. Pettiti, Mr R. Macdonald,
Mr M.A. Lopes Rocha, Mr P. Jambrek, Mr K. Jungwiert and
Mr P. Kuris (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Netherlands Government ("the Government"), the applicant's
lawyer and the Delegate of the Commission on the organisation of
the proceedings (Rules 39 para. 1 and 40). Pursuant to the order
made in consequence, the Registrar received the Government's and
the applicant's memorials on 14 September 1995. The Commission
produced the documents in the proceedings before it, as requested
by the Registrar on the President's instructions.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 20 November 1995. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr K. de Vey Mestdagh, Ministry of Foreign Affairs, Agent,
Mr J.L. de Wijkerslooth de Weerdesteijn,
landsadvocaat, Counsel;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicant
Mr B.A.M. van Maarschalkerwaart, advocaat en procureur, Counsel.
The Court heard addresses by Mr Schermers,
Mr van Maarschalkerwaart and Mr de Wijkerslooth de Weerdesteijn.
AS TO THE FACTS
I. Particular circumstances of the case
6. The applicant is a Netherlands national born in 1927 and
residing in Alicante, Spain. Until the end of 1974 he lived in
the Netherlands. At least until late 1976 he was involved in the
management of a number of companies incorporated under
Netherlands law in which he also had an interest, directly or
indirectly, as a shareholder.
7. In 1977 the tax authorities initiated an investigation
into possible tax offences committed by the applicant.
8. On 22 January 1980 the tax authorities sent to the
applicant additional assessments of his income tax
(inkomstenbelasting) for the year 1974 and of his property tax
(vermogensbelasting) for the year 1975. The sums payable were
increased by 100% as the tax authorities considered that the
applicant had returned incorrect statements (see paragraph 13
below).
9. On 25 January 1980 the Director of State Taxes (Directeur
van 's Rijks Belastingen) forwarded to the public prosecutor
(officier van justitie) a record of findings of 10 January 1980
(proces-verbaal) by the Fiscal Intelligence and Investigation
Service (Fiscale Inlichtingen- en Opsporingsdienst), with the
request to take the measures necessary to prosecute the
applicant. On 25 June 1980 the applicant sent a letter to the
public prosecutor to the effect that it had come to his notice
that he was under suspicion.
On 3 September 1982 the public prosecutor requested the
opening of a preliminary judicial investigation (gerechtelijk
vooronderzoek) against the applicant.
10. On 24 May 1984 the Amsterdam Regional Court
(arrondissementsrechtbank) tried the applicant in absentia. The
charges comprised four counts of ordering the return of false tax
statements for the years 1974 to 1976 by various companies in
whose management he was involved as well as two counts of making
false statements of his income and assets, resulting in the
fixing of incorrect assessments of his income tax for 1974 and
his property tax for 1975. The Regional Court found him guilty
on all counts on 7 June 1984 and sentenced him to one year's
imprisonment and a fine of 1,000,000 Netherlands guilders (NLG).
11. The applicant appealed to the Amsterdam Court of Appeal
(gerechtshof).
Having held hearings on 10 October 1986 and on
16 January and 13 March 1987, that court, in its judgment of
13 March 1987, quashed the judgment of the Regional Court and
declared the prosecution time-barred. It held that since the
applicant had been aware as of 25 June 1980 of the possibility
of criminal proceedings being brought against him and no action
relating thereto had been taken until 3 September 1982 (the
opening of the preliminary judicial investigation), the criminal
charge against him could not be said to have been determined
within a "reasonable time" as required by Article 6 (art. 6) of
the Convention and Article 14 para. 3 of the International
Covenant on Civil and Political Rights.
12. On 25 June 1987, Mr Leutscher filed with the Court of
Appeal a request for reimbursement of costs and expenses incurred
in the course of the criminal proceedings against him. He
sought, inter alia, NLG 61,410 for the assistance of counsel and
NLG 40,000 for loss of time, relying on Article 591a para. 2 of
the Code of Criminal Procedure (Wetboek van Strafvordering; CCP)
(see paragraph 17 below).
13. On 6 January 1988, the Tax Chamber (belastingkamer) of
the Amsterdam Court of Appeal quashed the additional assessment
of the applicant's income tax for 1974. On 13 April 1988 it also
quashed the additional assessment of his property tax over 1975
(see paragraph 8 above).
14. On 16 March 1990, following a hearing in camera on
20 July 1988, which was attended by the applicant and his
counsel, the presiding judge of the review chamber (raadkamer)
of the Court of Appeal gave a decision on the applicant's request
for reimbursement of costs and expenses.
He awarded certain sums to cover the costs of the
witnesses and the fees of tax consultants, as well as full
reimbursement of the applicant's travel expenses. However, he
refused to order the payment of any sum to compensate for loss
of time, not finding it established that the applicant had
suffered any detriment in this regard. He also rejected the
claim for reimbursement of counsel's fees. His reasoning on this
issue included the following:
"It appears from the case file that [the applicant] was
involved in a number of companies and that these
companies, under the direction or orders of [the
applicant], committed a number of criminal acts of a
fiscal nature (fiscale delicten) which have caused the
State considerable financial loss. The Regional Court
convicted the applicant inter alia of these criminal acts
...
Neither the file of the criminal investigation nor that
relating to the present request gives any cause to doubt
that this conviction was correct.
In these circumstances the Court of Appeal, considering
all the circumstances, does not find that there are any
reasons in equity to grant [the applicant] reimbursement
of his legal costs."
II. Relevant domestic law
15. The following sets out the relevant provisions of the
Code of Criminal Procedure as they read at the time of the events
complained of.
16. Article 90 CCP, in so far as relevant, provided:
"1. Compensation shall be awarded in each case if and to
the extent that the court, taking all circumstances into
account, is of the opinion that there are reasons in
equity to do so.
..."
17. Article 591a CCP, in so far as relevant, provided:
"...
2. If the case ends without imposition of a punishment
or measure ... the former suspect or his heirs may be
granted compensation at the expense of the State for the
damage which he has actually suffered through loss of
time as a result of the preliminary investigation and the
examination of his case at the trial, as well as the
costs of counsel. This will include compensation for the
costs of counsel during police custody and detention on
remand. Compensation for such costs may furthermore be
granted when a case ends with the imposition of a
punishment or measure on the basis of a fact for which
detention on remand is not allowed.
...
4. [Article] 90 ... shall apply by analogy."
18. Appeal proceedings against a conviction or sentence at
first instance involve a complete rehearing of the case. The
defence enjoys the same rights as it does at first instance
(Article 415 CCP).
PROCEEDINGS BEFORE THE COMMISSION
19. Mr Leutscher applied to the Commission on 29 June 1990.
He complained under Article 6 paras. 1 and 3 (b) and (d)
(art. 6-1, art. 6-3-b, art. 6-3-d) of the Convention that both
the additional tax assessments and the criminal proceedings
against him had been based on incorrect facts and that he had
been denied the opportunity to prove that both the assessments
and the criminal charges were unjust. He submitted that the
additional tax assessments and criminal charges had been based
on fiscal documents to which he had been denied access, which had
seriously hampered him in challenging the assessments and
charges. As a result he had not had a fair hearing before the
Court of Appeal in respect of his claims for remuneration after
the criminal proceedings had been discontinued.
The applicant also complained that the reference to the
correctness of his conviction at first instance made by the
President of the review chamber of the Court of Appeal in the
latter's decision of 16 March 1990 in respect of his compensation
claim had violated his rights under Article 6 para. 2 (art. 6-2)
of the Convention as it reflected the opinion that he was guilty
of the offences with which he had been charged, whereas the
criminal proceedings had not ended in a conviction.
The applicant finally complained under Article 6 para. 1
(art. 6-1) of the Convention that proceedings he had brought to
obtain access to certain fiscal documents allegedly grounding the
additional tax assessments and increases had not been brought to
a conclusion within a reasonable time.
20. On 8 January 1993 the Commission declared the application
(no. 17314/90) admissible in so far as it related to the
applicant's complaints in respect of the proceedings concerning
the claim for reimbursement of legal fees and in respect of the
applicant's right to be presumed innocent, and inadmissible for
the remainder.
In its report of 12 October 1994 (Article 31) (art. 31),
it concluded unanimously that there had been no violation of
Article 6 para. 1 (art. 6-1) and by eight votes to five that
there had been no violation of Article 6 para. 2 (art. 6-2). The
full text of the Commission's opinion and of the partly
dissenting opinion contained in the report is reproduced as an
annex to this judgment (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions - 1996-II), but a copy of the Commission's report is
obtainable from the registry.
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FINAL SUBMISSIONS TO THE COURT
21. The Government concluded their memorial by expressing the
opinion that there had been no violation of Article 6 para. 2
(art. 6-2), that Article 6 paras. 1 and 3 (art. 6-1, art. 6-3)
were not applicable to the case, and that even if the Court
should find Article 6 para. 1 (art. 6-1) to be applicable, it had
not been violated.
AS TO THE LAW
I. SCOPE OF THE CASE BEFORE THE COURT
22. In his memorial before the Court, the applicant repeated
all the various complaints which he had submitted to the
Commission, including those which the Commission had declared
inadmissible (see paragraphs 19 and 20 above).
However, the compass of the case before it being
delimited by the Commission's decision on admissibility, the
Court has no jurisdiction to revive issues declared inadmissible
(see, as a recent authority, the Masson and Van Zon v. the
Netherlands judgment of 28 September 1995, Series A no. 327-A,
p. 16, para. 40).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
23. The first complaint of the applicant declared admissible
by the Commission was that he had not had a fair hearing before
the Amsterdam Court of Appeal in relation to his request for
reimbursement of his counsel's fees, contrary to Article 6
para. 1 (art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ..."
Neither the Commission nor the Government agreed with
this contention.
24. The applicant's request was based on Article 591a
para. 2 CCP (see paragraph 17 above).
In the above-mentioned judgment in the case of Masson and
Van Zon, the Court had regard to the wording of that provision
(according to which the competent court "may" award the former
suspect compensation - ibid.), which made it clear that
Article 591a
para. 2 CCP did not require the domestic courts to hold the State
liable to pay even if the conditions set out therein were met and
therefore did not create any "right" for the former accused. The
measure of discretion granted by Article 90 para. 1 CCP, which
made the award of compensation contingent on the competent
court's being of the opinion that "reasons in equity" existed
therefor (see paragraph 16 above) provided a further indication
that no actual "right" was recognised under the law of the
Netherlands. That being so, the Court held that proceedings
under Article 591a para. 2 CCP were not covered by Article 6
para. 1 (art. 6-1) of the Convention (loc. cit., pp. 19-20,
paras. 51-52).
The Court sees no reason to alter its conclusion in the
instant case. In any event, the applicant did not submit any
argument on this issue; nor did the Commission's Delegate,
speaking at the Court's hearing, invite the Court to reconsider
its earlier case-law.
Accordingly, the Court holds that Article 6 para. 1
(art. 6-1) is not applicable to the proceedings in question.
III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 2 (art. 6-2) OF THE
CONVENTION
25. Relying on Article 6 para. 2 (art. 6-2) of the
Convention, the applicant also objected to the statement in the
Court of Appeal's decision of 16 March 1990 that neither the file
of the criminal investigation nor that relating to his request
for reimbursement of his lawyer's fees gave any cause to doubt
that his conviction at first instance was correct (see
paragraph 14 above). This, he contended, constituted a violation
of the presumption of innocence enshrined in Article 6 para. 2
(art. 6-2), according to which:
"Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law."
Neither the Commission nor the Government concurred with
this view.
26. The applicant argued that since the Amsterdam Court of
Appeal had declared the prosecution time-barred on 13 March 1987
(see paragraph 11 above), there had been no final judgment
finding him guilty and the presumption of innocence enshrined in
Article 6 para. 2 (art. 6-2) had not ceased to apply. In his
submission, the subsequent refusal of the Court of Appeal to
order the reimbursement of his legal costs, based as it was on
the ground that his conviction at first instance appeared sound,
amounted to a formal finding of guilt without his having been
able to exercise the rights of the defence.
27. The Commission, relying on the case-law of the Court,
concluded that the refusal to reimburse the applicant his legal
costs did not in itself offend the presumption of innocence.
It further observed that the applicant had been convicted
at first instance and that no decision had subsequently been
given from which it followed that that conviction had been
overturned. The Amsterdam Court of Appeal had therefore, in its
view, confined itself to noting the continued existence of a
reasonable suspicion against the applicant without formally
finding him guilty.
28. The Government endorsed the Commission's arguments in
substance. They noted in addition that the impugned ground of
the Amsterdam Court of Appeal had been a response to an argument
put forward by the applicant to the effect that his conviction
at first instance had been "altogether unsound".
29. The Court notes that it was common ground that Article 6
para. 2 (art. 6-2) does not confer on a person "charged with a
criminal offence" a right to reimbursement of his legal costs
where proceedings taken against him are discontinued (see the
Lutz v. Germany judgment of 25 August 1987, Series A no. 123,
p. 25, para. 59).
The Court, like the Commission, would also recall its
established case-law to the effect that in itself the refusal to
order the reimbursement to the former accused of his necessary
costs and expenses following the discontinuation of criminal
proceedings against him does not amount to a penalty or a measure
that can be equated with a penalty (ibid., p. 26, para. 63).
Nevertheless, such a decision may raise an issue under
Article 6 para. 2 (art. 6-2) if supporting reasoning, which
cannot be dissociated from the operative provisions, amounts in
substance to a determination of the guilt of the former accused
without his having previously been proved guilty according to law
and, in particular, without his having had an opportunity to
exercise the rights of the defence (ibid., para. 60).
30. Although the judgment at first instance was given in
absentia, the applicant had the benefit of appeal proceedings
which were by way of a complete rehearing and in which the
accused enjoyed the same rights as he did at first instance (see
paragraphs 10, 11 and 18 above). To that extent it cannot be
said that the applicant was not in a position to exercise the
rights of the defence. In the event, the appeal proceedings
resulted in the Court of Appeal's judgment of 13 March 1987
declaring the prosecution time-barred.
31. Under Article 591a para. 2 CCP taken together with
Article 90 CCP the Court of Appeal was empowered to order that
the applicant's costs should be paid out of public funds only if
it found that there were "reasons in equity" for such
reimbursement. In the exercise of the wide measure of discretion
conferred upon it under these provisions, the Court of Appeal was
- both under the Convention and under Netherlands law - entitled
to take into account the suspicion which still weighed against
the applicant as a result of the fact that his conviction had
been quashed on appeal only because the prosecution was found to
have been time-barred when the case was brought to trial. It
made clear that it did so by stating that "neither the file of
the criminal investigation nor that relating to the present
request [gave] any cause to doubt that this conviction [had been]
correct" (see paragraph 14 above).
The Court of Appeal, when applying Article 591a
para. 2 CCP, was not called upon to reassess the applicant's
guilt or express a view as to whether his conviction would have
been upheld on appeal. Nor, when seen in the context of that
provision, as it must be, can its decision of 16 March 1990 be
construed as a finding to that effect.
32. No violation of Article 6 para. 2 (art. 6-2) can
therefore be found on the facts of the present case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 (art. 6-1) of the Convention
is inapplicable in the present case;
2. Holds that there has been no violation of Article 6
para. 2 (art. 6-2) of the Convention.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
26 March 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy