AS TO THE ADMISSIBILITY OF
Application No. 12241/86
by L.
against the Netherlands
The European Commission of Human Rights sitting in private
on 13 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 April 1986
by L. against the Netherlands and registered on 26 June 1986 under
file No. 12241/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant is a candidate-notary public (kandidaat-
notaris) of Dutch nationality residing in Breda, the Netherlands.
In 1980 the applicant was recommended by the Supervisory Board
of (candidate-) Notaries Public (Kamer van Toezicht over de notarissen
en kandidaat-notarissen) to the Deputy Minister of Justice to be
appointed notary public in Terheijden, which office was vacant at the
time. After having exercised that office for nine months as a
substitute, the applicant withdrew his application for the function in
December 1980 in order to await the outcome of a criminal
investigation which had in the meantime been instituted against him.
The applicant was suspected of having fraudulently signed a deed of
conveyance. For the same reason, the applicant was discharged as a
substitute notary public as of 1 March 1981.
On 28 April 1982 the Breda Regional Court (Arrondissements-
rechtbank) sentenced the applicant to two months' imprisonment and
three years' disqualification from holding office as notary public.
On appeal, the 's-Hertogenbosch Court of Appeal (Gerechtshof)
quashed the judgment of the Regional Court and acquitted the applicant
on 4 July 1983. The Court of Appeal considered that, although a fraud
had taken place, it had not been proven that the applicant had
intended to commit fraud or that he had even been aware of doing so.
It appears that the applicant has since unsuccessfully applied
for several vacant posts as a notary public. The Supervisory Board
apparently each time refused to recommend the applicant to the Deputy
Minister of Justice.
On 4 April 1985, the applicant complained to the Deputy
Minister and asked her to appoint him as notary public in Oosterhout,
a vacant post for which the applicant had applied but for which he had
not been recommended by the Supervisory Board.
Upon her request, the president of the Supervisory Board - who
was president of the Regional Court that had originally convicted the
applicant - informed the Deputy Minister of Justice in a letter dated
8 July 1985, that the Supervisory Board had no confidence in the
applicant as a result of the careless and negligent behaviour which
had led to the criminal proceedings against him.
On 12 July 1985 the applicant's lawyer wrote a letter to the
Deputy Minister complaining that the Supervisory Board had wrongly
failed to recommend the applicant since it had apparently based
itself on damaging facts unknown to the applicant and against which
he had no opportunity to defend himself.
The Deputy Minister of Justice informed the applicant's lawyer
in writing on 23 August 1985 that the Supervisory Board in refusing to
recommend the applicant had properly balanced the various interests
involved and that she therefore had decided not to nominate him to
the office of notary public. The letter does not reveal the reasons
underlying the refusal of the Supervisory Board to recommend the
applicant, but refers to "facts and circumstances which have otherwise
been established" in the criminal proceedings against him. The letter
states that the fact that the applicant was acquitted by the Court of
Appeal does not exclude the possibility that the facts which led to
the criminal proceedings against the applicant might stand in the way
of an appointment as notary public.
On 18 October 1985 the applicant visited the Deputy Minister
of Justice to discuss her refusal to appoint him, but without success.
She did not disclose the contents of the Supervisory Board's letter of
8 July 1985 to the applicant.
In December 1986, in connection with a new application for a
post as notary public by the applicant, the Supervisory Board sent the
applicant a copy of its letter of 8 July 1985.
On 11 May 1987 the National Ombudsman found that the Deputy
Minister of Justice had not acted properly in not enabling the
applicant to examine and to comment upon, the letter of the
Supervisory Board of 8 July 1985.
COMPLAINTS
The applicant complains of the fact that the Supervisory
Board refuses to recommend him to the Deputy Minister of Justice for
appointment as notary public and that the Deputy Minister herself has
refused to nominate him for that office. He claims that in spite of
his acquittal by the Court of Appeal, the attitude of these
authorities constitutes a de facto conviction in that he is not
considered eligible for the office of notary public. Against this
"conviction", the applicant had no opportunity to defend himself. In
this respect, the applicant alleges violations of Article 6 para. 2
and Article 7 para. 1 of the Convention.
THE LAW
1. The applicant has complained that, in spite of his acquittal,
the Dutch authorities do not consider him eligible for the office of
notary public. In this respect he has invoked Article 6 para. 2 (Art.
6-2) of the Convention which provides:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission first notes that it might not be required to
decide whether or not the facts alleged by the applicant disclose any
appearance of a violation of these provisions, as Article 26 (Art. 26)
of the Convention provides that the Commission "may only deal with the
matter ...... within a period of six months from the date on which
the final decision was taken".
In the present case, it is open to doubt whether the Deputy
Minister of Justice's letter of 23 August 1985 should be regarded as
the "final decision" for the purposes of the six months' rule in
Article 26 (Art. 26) or whether it gave rise to a continuing situation
to which the six months' rule is inapplicable.
However, even assuming that the latter is the case, the
Commission does not consider, for the reasons set out below, that
the facts submitted by the applicant disclose any appearance of a
violation of the presumption of innocence.
The Commission recalls its established jurisprudence that the
presumption of innocence is not only a guarantee applicable to
criminal proceedings but also a fundamental principle which protects
everybody against being treated by public officials as being guilty of
an offence before this is established according to law by a competent
court (see e.g. No 7986/77, Dec. 3.10.78, D.R. 13 p. 73 and No
9295/81, Dec. 6.10.82, D.R. 30 p. 227). In its last-mentioned
decision, the Commission has in particular held that after a person
has been acquitted, the authorities may not continue to rely on the
charges which have been raised before the criminal court but which
have been proved to be unfounded. In this connection the Commission
has held:
"This rule also applies to courts which have to deal with
non-criminal consequences of behaviour which has been
subject to criminal proceedings. They must be bound by
the criminal court's finding according to which there is
no criminal responsibility for the facts in question
although this naturally does not prevent them to establish
e.g. a civil responsibility arising out of the same facts"
(No.9295/81, loc. cit.).
The Commission notes that, in the present case, the negative
attitude of the Supervisory Board and of the Deputy Minister of
Justice as to the applicant's eligibility for the office of notary
public appears to have been based on the same facts which were the
subject of the criminal proceedings against him in the course of which
the applicant was eventually acquitted.
However, the Commission considers that it is apparent from the
reasons given by the Deputy Minister of Justice, that the refusal to
nominate the applicant as notary public is not based on the criminal
charge of which he was acquitted. The Deputy Minister has interpreted
the facts which led to the criminal charge in the light of the special
responsibilities incumbent on the office of notary public. Thus, a
clear distinction was drawn between the effects of his behaviour in
criminal law and those in the context of the applicant's suitability
to exercise this office.
Consequently, the Commission considers that the position of
the Supervisory Board and the Deputy Minister of Justice does not even
indirectly amount to a finding of criminal guilt on the part of the
applicant. The Commission, therefore, does not find any appearance of
a violation of the presumption of innocence in this complaint.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has also complained that the fact that he is not
considered eligible as notary public constitutes a violation of Article
7 para. 1 (Art. 7-1) of the Convention.
It is true that Article 7 para. 1 (Art. 7-1) of the Convention
provides that no one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it was
committed.
However, the Commission recalls with respect to the
applicant's complaint under Article 6 para. 2 (Art. 6-2) of the
Convention, that the facts complained of did not amount to a finding
that he had committed a criminal offence. There is thus no indication
that the applicant has been held guilty of a criminal offence within
the meaning of Article 7 para. 1 (Art. 7-1) of the Convention.
An examination of this complaint as it has been submitted does
not therefore disclose any appearance of a violation of the above
Article. It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)