AS TO THE ADMISSIBILITY OF
Application No. 34973/97
by Oscar HAMMERSTEIN
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 March 1996 by
Oscar HAMMERSTEIN against the Netherlands and registered on
18 February 1997 under file No. 34973/97;
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 applicant is a Dutch national, born in 1954, and resides in
Amsterdam. He is a lawyer. Before the Commission he is represented by
Mr G. Spong, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On suspicion of having participated in a criminal organisation,
handling and receiving stolen goods, narcotics offences and fraud, the
applicant was detained on remand on 16 March 1994. He was released on
27 April 1994.
In the subsequent criminal proceedings against him which only
concerned charges of fraud, the applicant was acquitted by the Regional
Court (Arrondissementsrechtbank) of Amsterdam by judgment of
23 December 1994.
In the subsequent proceedings on appeal, the Court of Appeal
(Gerechtshof) of Amsterdam concluded in its judgment of 20 June 1995,
on pages 3 and 4 under points 4 and 5, that in rendering his services
as a lawyer the applicant had acted thoughtlessly ("lichtvaardig zijn
diensten als advocaat heeft verleend") and had acted carelessly in
giving his assistance to the drafting of certain acts ("bij het
verlenen van zijn medewerking aan het doen opstellen van ... aktes
onzorgvuldig is te werk gegaan"). However, as the Court of Appeal did
not find it established that the applicant had acted with intent, a
conditio sine qua non for a conviction of the charges brought against
the applicant, it acquitted the applicant.
On 25 August 1995, the Court of Appeal received requests under
Article 89 and Article 591a of the Code of Criminal Procedure (Wetboek
van Strafvordering) by the applicant for compensation of damage
incurred as a result of the time spent in pre-trial detention and
reimbursement of lawyer's costs incurred respectively. The Court of
Appeal considered these requests in the course of a hearing held on
5 December 1995.
By decision of 19 December 1995, the Court of Appeal rejected the
applicant's request under Article 89 of the Code of Criminal Procedure.
It held that, in view of the Court of Appeal's findings set out on
pages 3 and 4 under points 4 and 5 of its judgment of 20 June 1995,
there were no grounds in equity ("gronden van billijkheid") to grant
the applicant full or partial compensation for the time spent in pre-
trial detention.
On the same day, in a separate decision, the Court of Appeal also
rejected the applicant's request under Article 591a of the Code of
Criminal Procedure for reimbursement of lawyer's costs incurred. With
reference to the Court of Appeal's findings on pages 3 and 4 under
points 4 and 5 of its judgment of 20 June 1995, the Court of Appeal
held that there were no grounds in equity to grant the applicant's
request either in part of in full.
Under Dutch law no appeal lies against the decisions of
19 December 1995.
COMPLAINT
The applicant complains that the reasons given in the decisions
of 19 December 1995 of the Court of Appeal are contrary to Article 6
para. 2 of the Convention. He submits that these decisions constitute
a kind of second-class conviction on the basis of a finding that the
applicant is blameworthy.
THE LAW
The applicant complains that the reasons given in the decisions
of 19 December 1995 of the Court of Appeal are contrary to Article 6
para. 2 (Art. 6-2) of the Convention.
Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission recalls that, despite the wording of Article 6
para. 2 (Art. 6-2) of the Convention, it has consistently interpreted
this provision as also applying to situations where the person
concerned is not or no longer formally subject to a criminal charge.
Furthermore, the presumption of innocence is to be observed not only
by the criminal court trying a case, but also by other authorities
including courts other than those which are competent to determine a
criminal charge (cf. Sekanina v. Austria, Comm. Report 20.5.92, Eur.
Court HR, Series A no. 266, p. 20, para. 36).
The Commission further recalls that neither Article 6 para. 2
(Art. 6-2) nor any other provision of the Convention gives a person
"charged with a criminal offence" a right to reimbursement of his costs
or a right to compensation for lawful pre-trial detention where
proceedings taken against him are discontinued (cf. Eur. Court HR,
Englert v. Germany judgment of 25 August 1987, Series A no. 123, p. 54,
para. 36). Nevertheless, such a decision may raise an issue under
Article 6 para. 2 (Art. 6-2) of the Convention if supporting reasons
amount in substance to a determination of the guilt of the former
accused without his having previously been proved guilty according to
law. In this respect the Convention organs distinguish between
statements which reflect the opinion that the person concerned is
guilty and statements which merely describe a state of suspicion. The
former infringe the presumption of innocence, whereas the latter have
been regarded as unobjectionable in various situations examined by the
Convention organs (cf. Eur. Court HR, Leutscher v. the Netherlands
judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II,
p. 436, para. 29).
The Commission has noted the relevant Dutch law and practice as
described by the European Court in previous cases (Eur. Court HR,
Masson and Van Zon v. the Netherlands judgment of 28 September 1995,
Series A no. 327-A, pp. 10-14, paras. 26-31; and Leutscher v. the
Netherlands judgment, loc. cit., pp. 432-433, paras. 15-18).
The Commission notes at the outset that there is no question in
the present case of the Court of Appeal of Amsterdam refusing to grant
the applicant's requests under Articles 89 and 591a of the Code of
Criminal Procedure because it disagreed with the outcome of the
criminal proceedings against him. It was the same court which acquitted
the applicant.
As regards the reasons stated by the Court of Appeal for
rejecting the applicant's requests under Articles 89 and 591a of the
Code of Criminal Procedure, the Commission notes that the Court of
Appeal considered that the applicant had acted thoughtlessly and
carelessly. However, the Commission finds that it has not been
submitted nor has it appeared that acting thoughtlessly or acting
carelessly, as such, constitute criminal offences under Dutch law.
The Commission considers that the Court of Appeal meant to
indicate, as it was required to do in its determination of the
applicant's requests, that there had been reasonable suspicions
concerning the applicant. Even if this reference to the findings of the
Court of Appeal in the criminal proceedings against the applicant may
be regarded as ambiguous or unsatisfactory by the applicant, the
Commission is of the opinion that the Court of Appeal confined itself
in substance to noting that there had been a "reasonable suspicion"
that the applicant had "committed an offence" (Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention).
The Commission, therefore, cannot find that the Court of Appeal's
decisions on the applicant's requests under Article 89 and 591a of the
Code of Criminal Procedure offended the presumption of innocence
guaranteed to the applicant under Article 6 para. 2 (Art. 6-2) of the
Convention.
It follows that the application must be rejected for being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy