EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 17314/90
Jakob Koos Leutscher
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 12 October 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 19) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 5) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 6 - 14) . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 15 - 19) . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 20 - 29) . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 20 - 25) . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 26 - 29) . . . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 30 - 67) . . . . . . . . . . . . . . . . . . . . . . 7
A. Complaints declared admissible
(para. 30) . . . . . . . . . . . . . . . . . . . . . . . 7
B. Points at issue
(para. 31) . . . . . . . . . . . . . . . . . . . . . . . 7
C. As regards Article 6 para. 2 of the Convention
(paras. 32 - 42) . . . . . . . . . . . . . . . . . . . . 7
CONCLUSION
(para. 43) . . . . . . . . . . . . . . . . . . . . . . . 9
D. As regards Article 6 paras. 1 and 3 of the Convention
(paras. 44 - 63) . . . . . . . . . . . . . . . . . . . . 9
1. The applicability of Article 6 paras. 1 and 3
of the Convention
(paras. 45 - 57) . . . . . . . . . . . . . . . . . 9
2. Compliance with Article 6 para. 1
of the Convention
(paras. 58 - 63) . . . . . . . . . . . . . . . . .11
CONCLUSION
(para. 64) . . . . . . . . . . . . . . . . . . . . . . .11
E. Recapitulation
(paras. 65 - 66) . . . . . . . . . . . . . . . . . . .12
TABLE OF CONTENTS
Page
PARTLY DISSENTING OPINION OF Mr. H. DANELIUS
JOINED BY MM. G. JÖRUNDSSON, J.-C. SOYER,
Mrs. G.H. THUNE AND Mr. L. LOUCAIDES. . . . . . . . . . . . . . . .13
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .14
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . .15
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Dutch citizen, born in 1927, and resides at
Alicante, Spain.
3. The application is directed against the Netherlands. The
respondent Government are represented by their Agent,
Mr. Karel De Vey Mestdagh, of the Netherlands Ministry of Foreign
Affairs.
4. The application concerns the proceedings and decision on the
applicant's claim for compensation under Section 591 (a) of the Dutch
Code of Criminal Procedure. Under these provisions a former accused
may claim compensation for legal and subsidiary costs incurred in
criminal proceedings.
5. Before the Commission, the applicant complains under
Article 6 paras. 1, 2 and 3 of the Convention that the decision on his
request for compensation for costs incurred in the discontinued
criminal proceedings against him violated the principle of presumption
of innocence, and that in the proceedings on this request he did not
receive a fair hearing.
B. The proceedings
6.7. The application was introduced on 29 June 1990 and registered on
17 October 1990.
8. On 2 September 1992, the Commission (Second Chamber) decided to
give notice of the application to the respondent Government inviting
them to submit observations in writing on the admissibility and merits
of the application.
9. The Government submitted their observations on 15 January 1993
and the applicant submitted his observations in reply on 22 May 1993.
10. On 1 December 1993, the Commission declared the applicant's
complaint concerning the proceedings for compensation admissible and
declared inadmissible the remainder of the application concerning the
applicant's complaints relating to the criminal proceedings against him
and to the proceedings concerning his requests for access to certain
documents.
11. On 21 December 1993, the parties were invited, should they so
desire, to submit further observations regarding the merits of the
application.
12. By letter of 28 January 1994, the Government informed the
Commission that they did not wish to submit further observations on the
merits.
13. After having been granted an extension of the time-limit until
28 March 1994, the applicant made further submissions in his letters
of 30 December 1993, 5 March 1994, 17 March 1994, and 5 May 1994.
14. The submissions of 5 May 1994 were submitted after the expiry of
the last time-limit fixed for this purpose. On 12 October 1994 the
Commission decided that these submissions should not be taken into
account.
15. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
16. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
17. The text of this Report was adopted on 12 October 1994 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
18. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its obligations
under the Convention.
19. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
20. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
21. On 7 June 1984 the Regional Court (Arrondissementsrechtbank) of
Amsterdam convicted the applicant of tax evasion as regards his taxable
income and assets over the years between 1974 and 1977 and sentenced
him in absentia to one year's imprisonment and a fine of one million
Dutch guilders.
22. In the subsequent appeal proceedings, the Court of Appeal
(Gerechtshof) of Amsterdam on 13 March 1987 declared the public
prosecution inadmissible as it could no longer be held that the
criminal charges against the applicant would be determined within a
reasonable time as required by Article 6 para. 1 of the Convention.
The penal proceedings were consequently discontinued.
23. On 25 June 1987 the applicant submitted a compensation claim
under Sections 591 and 591a of the Code of Criminal Procedure (Wetboek
van Strafvordering) of 156,366.35 Dutch guilders for lawyer's fees,
expenses for witnesses, costs of clerical assistance and travelling and
accommodation expenses he had allegedly incurred in the discontinued
criminal proceedings.
24. Following a hearing by the Court of Appeal in chambers on
20 July 1988 in the presence of the applicant and his lawyer, the Court
of Appeal, in its decision of 16 March 1990, awarded 1,492 guilders for
the costs claimed in respect of two witnesses, 822.09 guilders for the
applicant's administrative costs, and 1,802 guilders for his travel
expenses. The Court of Appeal rejected the claim for the remainder.
25. In respect of the applicant's compensation claim of
61,400 guilders for lawyer's fees, the Court held:
"Uit het procesdossier blijkt dat verzoeker betrokken was bij een aantal vennootschappen en dat deze vennootschappen onder leiding dan wel in opdracht van verzoeker zich hebben schuldig gemaakt aan een aantal fiscale delicten waardoor de Staat tot aanzienlijke bedragen is benadeeld. De rechtbank heeft onder meer ter zake van deze feiten verzoeker veroordeeld (...) De stukken betreffende het opsporingsonderzoek noch de behandeling van het verzoekschrift geven aanleiding tot twijfel aan de juistheid van deze veroordeling. Onder deze omstandigheden acht het hof, alle omstandigheden in aanmerking genomen, geen gronden van billijkheid aanwezig voor toekenning van een vergoeding ter zake van rechtsbijstand." "It appears from the file that the applicant was involved in a number of companies and that these companies, under the management or orders of the applicant, have committed a number of fiscal offences as a result of which the State has been deprived of considerable sums. In respect of, inter alia, these facts the Regional Court has convicted the applicant (...) Neither the documents concerning the investigation nor the examination of the request give rise to doubt as to the correctness of this conviction. Under these circumstances the court considers, all circumstances taken into account, that there are no equitable grounds for awarding compensation for legal assistance." 26. Under Dutch law no appeal lies against the Court of Appeal's decision of 16 March 1990. B. Relevant domestic law 27. Section 591 of the Code of Criminal Procedure, insofar as relevant, provides as follows: "1. Aan de gewezen verdachte of zijn erfgenamen wordt uit 's Rijks kas een vergoeding toegekend voor de kosten, welke ingevolge het bij en krachtens de Wet tarieven in strafzaken bepaalde ten laste van de gewezen verdachte zijn gekomen, voorzover de aanwending dier kosten het belang van het onderzoek heeft gediend of door de intrekking van dagvaardingen of rechtsmiddelen door het openbaar ministerie nutteloos is geworden. 2. Het bedrag van de vergoeding wordt op verzoek van de gewezen verdachte of zijn erfgenamen vastgesteld. Het verzoek moet worden ingediend binnen drie maanden na het eindigen van de zaak. De vaststelling geschiedt bij het gerecht in feitelijke aanleg, waarvoor de zaak tijdens de beëindiging daarvan werd vervolgd, of anders het laatst werd vervolgd, en wel door de kantonrechter of door de voorzitter van het gerecht. De voorzitter kan een der raadsheren of een der rechters die over de zaak hebben gezeten, daartoe aanwijzen. De kantonrechter of rechter geeft voor het bedrag van de vergoeding een bevelschrift van tenuitvoerlegging af. 3. Degenen, die het verzoek hebben ingediend, kunnen worden gehoord. Indien zij dit verlangen, worden zij gehoord, althans opgeroepen. Zij kunnen zich doen bijstaan door een advocaat. Artikel 24, laatste lid, is van toepassing. (...)." "1. To the former suspect or his heirs compensation will be awarded at the expense of the State for costs, which are to be borne by the former suspect pursuant to the provisions of the Act on Fees in Criminal Cases, insofar as the appropriation of these costs has served the investigation or has become useless by the withdrawal of summonses or remedies by the public prosecution. 2. The amount of the compensation shall be determined at the request of the former suspect or his heirs. This request must be submitted within three months following the termination of the case. The determination shall be made by the trial court which has dealt with or, otherwise, was dealing with the case at the moment it came to an end, and in fact by the District Court judge or by the president of the court. To this end the president can appoint one of the judges of the Court of Appeal or the Regional Court, who have dealt with the case. The District Court judge or the Regional Court judge will issue an execution order for the amount of the compensation. 3. Petitioners can be heard. If they so wish they will be heard, at least summoned. They can be assisted by a lawyer. Section 24, last paragraph, applies. (...)." 28. The last paragraph of Section 24 of the Code of Criminal Procedure provides: "De raadsman of de advocaat wordt bij de verhoren in de gelegenheid gesteld de nodige opmerkingen te maken." "The counsel or the lawyer will be provided with the opportunity to make the necessary statements at the hearings." 29. Section 591 (a) of the Code of Criminal Procedure, insofar as relevant, provides as follows: "1. Indien de zaak eindigt zonder oplegging van straf of maatregel (...) wordt aan de gewezen verdachte of zijn erfgenamen uit 's Rijks kas een vergoeding toegekend voor zijn ten behoeve van het onderzoek en de behandeling der zaak gemaakte reis- en verblijfkosten, berekend op de voet van het bij en krachtens de Wet tarieven in strafzaken bepaalde. 2. Indien de zaak eindigt zonder oplegging van straf of maatregel (...) kan aan de gewezen verdachte of zijn erfgenamen uit 's Rijks kas 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. Een vergoeding voor de kosten van een raadsman gedurende de verzekering en de voorlopige hechtenis is hierin begrepen. Een vergoeding voor deze kosten kan voorts worden toegekend in het geval dat de zaak eindigt met oplegging van straf of maatregel op grond van een feit, waarvoor voorlopige hechtenis niet is toegelaten. (...) 4. De artikelen 90 en 591, tweede tot en met vijfde lid zijn van overeenkomstige toepassing." "1. If a case comes to an end without imposition of a punishment or measure (..) compensation will be granted to the former suspect or his heirs for his travel and subsistence costs incurred for the investigation and the examination of his case, calculated on the basis of the Act on Fees in Criminal Cases. 2. If a case comes to an end without imposition of a punishment or measure (...) compensation may be granted to the former suspect or his heirs for the damage which he has actually suffered as a result of the loss of time due to the judicial 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 the detention on remand. A compensation for such costs may furthermore be granted when a case ends with imposition of a punishment or measure on the basis of a fact for which detention on remand is not allowed. (....) 4. Sections 90 and 591, paras. 2 to 5, apply by analogy." 30. Section 90 of the Code of Criminal Procedure provides as follows: "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. 2. Bij de bepaling van het bedrag wordt ook rekening gehouden met de levensomstandigheden van de gewezen verdachte. 3. De beslissing is met redenen omkleed. De beschikking wordt onverwijld aan de gewezen verdachte of aan zijn erfgenamen betekend, doch, indien het een afwijzende beslissing betreft, met weglating van de redenen. In dat geval kan de gewezen verdachte of kunnen zijn erfgenamen van de redenen ter griffie inzage bekomen." "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. 2. In the determination of the amount also the living conditions of the former suspect are being taken into account. 3. The decision is reasoned. The decision is immediately notified to the former suspect or to his heirs, but, in case of a rejection, with omission of the reasons. In that case the former suspect or his heirs can consult the reasons at the registry." III. OPINION OF THE COMMISSION A. Complaints declared admissible 31. The Commission declared admissible the applicant's complaints under Article 6 paras. 1, 2 and 3 (b) (Art. 6-1, 6-2, 6-3-b) of the Convention that, in the proceedings before the Court of Appeal on his request for compensation for, inter alia, reimbursement of his lawyer's fees following the discontinuation of the criminal proceedings against him, he did not receive a fair hearing, and that the Court of Appeal's decision of 16 March 1990 violated the principle of presumption of innocence. B. Points at issue 32. The points at issue are accordingly: - whether there has been a violation of Article 6 para. 2 (Art. 6-2) of the Convention; and - whether there has been a violation of Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-2, 6-3-b) of the Convention. C. As regards Article 6 para. 2 (Art. 6-2) of the Convention 33. Article 6 para. 2 (Art. 6-2) of the Convention provides as follows: " Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." 34. The applicant alleges a violation of this provision in that, despite the discontinuation of the criminal proceedings against him, the Court of Appeal, when rejecting his request for compensation, based its decision, inter alia, on the finding that neither the documents concerning the investigation nor the examination of the applicant's request gave rise to doubt as to the correctness of his conviction by the Regional Court. 35. The Government submit that the Court of Appeal's decision of 16 March 1990 did not violate the principle of presumption of innocence as the Court of Appeal in reaching this decision took all relevant facts into account and merely intended to state that, although the criminal proceedings had been discontinued, there still existed a serious suspicion that the applicant had committed the offences in question. 36. 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 charged with 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, para. 36, Eur. Court H.R. Series A no. 266, p. 20). 37. However, the Commission also 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 where proceedings taken against him are discontinued (cf. Eur Court. H.R., Lutz judgment of 25 August 1987, Series A no. 123, p. 25, para. 59). 38. The refusal to fully reimburse the applicant for his costs and expenses accordingly did not in itself offend the presumption of innocence. 39. Nevertheless, a decision refusing reimbursement of an accused's necessary costs and expenses following termination of proceedings may raise an issue under Article 6 para. 2 (Art. 6-2) if supporting reasoning amounts in substance to a determination of the accused's guilt 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. Sekanina v. Austria, Comm. Report 20.5.92, loc. cit., p. 21, paras. 39-40). 40. The Commission observes that the refusal complained of was based on Section 591 (a) in conjunction with Section 90 of the Code of Criminal Procedure. In applying these provisions the competent judicial authorities, pursuant to Section 90 of the Code of Criminal Procedure, decide the matter on an equitable basis and have a degree of discretion, in that they are under an obligation to take all circumstances into account. 41. The Commission further observes that the applicant had been convicted and sentenced in the first instance proceedings before the Regional Court of Amsterdam. 42. The Commission finds that the refusal to award the applicant's claim for compensation in full does not amount to a penalty or a measure that can be equated with a penalty. Even if the terms used by it may appear ambiguous and unsatisfactory, the Court of Appeal, in stating that it appeared from the file that fiscal offences had been committed under the management or orders of the applicant and that it had found no element for doubting the correctness of the applicant's conviction by the Regional Court, confined itself in substance to noting the existence of reasonable suspicion that the applicant had been involved in a number of fiscal offences (see para. 24) and did not, as such, contain any finding of guilt. 43. The Commission is therefore of the opinion that the Court of Appeal's decision of 16 March 1990 did not offend the presumption of innocence guaranteed to the applicant under Article 6 para. 2 (Art. 6-2) of the Convention. CONCLUSION 44. The Commission concludes by eight votes to five that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention. D. As regards Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention 45. Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, insofar as relevant, provides as follows: "1. In the determination of his civil rights and obligations (...), everyone is entitled to a fair (...) hearing (...) by an independent and impartial tribunal (...). (...) 3. Everyone charged with a criminal offence has the following minimum rights: (...) b. to have adequate time and facilities for the preparation of his defence; (...)." 1. Applicability of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention 46. With regard to Article 6 para. 3 (Art. 6-3) of the Convention, the Commission first notes that the applicant, when filing his request for compensation on 25 June 1987, was no longer charged with a criminal offence within the meaning of Article 6 para. 3 (Art. 6-3) of the Convention, since as a result of the Court of Appeal's decision of 13 March 1987 the criminal proceedings against him had been discontinued. 47. In these circumstances the Commission finds that the proceedings at issue fall outside the scope of Article 6 para. 3 (Art. 6-3) of the Convention. 48. However, it remains to be examined whether the proceedings concerned the determination of the applicant's civil rights or obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 49. The applicant submits that the proceedings concerning his request for compensation for, inter alia, his lawyer's fees involved a determination of a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, since Dutch law provides a possibility to be awarded compensation for certain expenses incurred in criminal proceedings where these proceedings end without the imposition of a punishment or a measure. 50. The Government submit that the applicant's request for compensation can neither be seen as based on an established right under Dutch law nor as concerning a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, as under Section 591 (a) para. 2 of the Code of Criminal Procedure compensation may be awarded for time wasted and lawyer's fees insofar as the court finds equitable grounds for such an award. It is therefore fully dependent on the discretionary finding by a court that there are equitable grounds for granting it. Such equitable grounds were not found insofar as the applicant's claim for compensation was rejected. 51. Referring to a decision of the Commission (No. 10923/87, Dec. 6.5.85, unpublished), the Government submit that a claim for compensation under the Code of Criminal Procedure does not require that the law has been violated and thus is in no way assimilated or comparable to private law claims for damages relating to tort liability. 52. The Government therefore consider that the proceedings at issue fell outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention. 53. The Commission must, in order to determine this issue, ascertain whether there was a dispute ("contestation" in the French text) concerning a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be a genuine and serious one; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise, and the result of the proceedings must be directly decisive for the right in question (cf. Eur. Court H.R., Skärby judgment of 28 June 1990, Series A no. 180-B, pp. 36 and 37, paras. 27 and 29). 54. As to the question whether or not the "right" claimed by the applicant was of a "civil" character, the Commission recalls that the concept of "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention is not to be interpreted solely by reference to the respondent State's domestic law and that Article 6 para. 1 (Art. 6-1) applies irrespective of the parties' status, be it public or private, and of the nature of the legislation governing the manner in which the dispute is to be determined (cf. Eur. Court H.R., Baraona judgment of 8 July 1987, Series A no. 122, pp. 17-18, para. 42). It is sufficient that the action was "pecuniary" in nature and that it was founded on an alleged infringement of rights which were likewise pecuniary rights (cf. Eur. Court H.R., Editions Périscope judgment of 26 March 1992, Series A no. 234-B, pp. 65-66, paras. 39-40) or that the outcome of the proceedings was "decisive for private rights and obligations" (cf. Eur. Court H.R., X. v. France judgment of 31 March 1992, Series A no. 234-C, p. 90, para. 30). 55. The Commission finds that there was a "dispute" in the present case. The dispute was over the question to what extent the applicant should be awarded compensation for the damage flowing from the criminal proceedings against him. 56. As regards the question whether there was a "right", the Commission notes that, according to the wording of Section 591 (a) of the Code of Criminal Procedure, the former suspect in a case which has ended without imposition of a punishment or a measure is entitled under Dutch law to seek compensation for the legal and subsidiary costs incurred in the criminal proceedings against him. The applicant could thus claim on arguable grounds to have a right that is recognised under Dutch law. There was thus, in the Commission's opinion, a "right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 57. As to the question whether or not the right at issue is "civil", the Commission notes that the right claimed consisted of financial reparation for pecuniary damage. It was therefore a "civil right", notwithstanding the origin of the dispute and the jurisdiction of the criminal courts (cf. Eur. Court H.R., Neves e Silva judgment of 27 April 1989, Series A no. 153-A, p. 14, para. 37). 58. The Commission therefore finds that Article 6 para. 1 (Art. 6-1) of the Convention applied to the proceedings at issue. 2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention -------------------------------------------------------------- 59. The applicant complains that he did not receive a fair hearing before the Court of Appeal on his request for compensation under the Code of Criminal Procedure, in that the preceding criminal proceedings against him, in which he had been convicted in first instance and to which conviction the Court of Appeal referred, were based on incorrect facts whilst he was denied the possibility to prove this. 60. The Commission recalls that in its decision on admissibility of 1 December 1993 it declared inadmissible the applicant's complaints relating to the criminal proceedings against him and to the proceedings concerning his requests for access to certain fiscal documents. 61. As regards the fairness of the proceedings before the Court of Appeal on the applicant's request for compensation, the Commission recalls that the conformity of a trial with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention must be examined in the light of the entire trial. The effect of Article 6 para. 1 (Art. 6-1) is, inter alia, to place the "tribunal" under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (cf. Eur. Court H.R., Kraska judgment of 19 April 1993, Series A no. 254-B, p. 49, para. 30). 62. The Commission notes that the applicant, who was assisted by his lawyer, was heard by the Court of Appeal before it determined his request for compensation. 63. The Commission has not found any substantiated allegations in the applicant's submissions which could justify the conclusion that he has been provided with insufficient opportunity to address the Court of Appeal or to submit whatever he found relevant to the outcome of the proceedings at issue. Moreover, having regard to the fact that in the preceding criminal proceedings against the applicant the Court of Appeal had declared the prosecution inadmissible, the Commission finds no indication that the Court of Appeal was biased in its examination of the applicant's request for compensation. 64. Considering the proceedings before the Court of Appeal as a whole, the Commission consequently finds no basis for the conclusion that they cannot be regarded as fair. CONCLUSION 65. The Commission concludes, unanimously, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention. E. Recapitulation 66. The Commission concludes, by eight votes to five, that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention (para. 43). 67. The Commission concludes, unanimously, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 64). Secretary to the Second Chamber President of the Second Chamber (K. ROGGE) (S. TRECHSEL) (Or. English) PARTLY DISSENTING OPINION OF Mr. H. DANELIUS JOINED BY MM. G. JÖRUNDSSON, J.-C. SOYER, Mrs. G.H. THUNE AND Mr. L. LOUCAIDES In my opinion there has been in the present case a violation of the applicant's right under Article 6 para. 2 of the Convention to be presumed innocent, for the following reasons. The applicant was convicted of tax evasion by the Regional Court, but the proceedings were pursued, upon appeal, before the Court of Appeal, which finally discontinued the proceedings on the ground that the criminal charge against the applicant had not been determined within a reasonable time as required by Article 6 para. 1 of the Convention. This means that the question of whether or not the applicant was guilty of the offences with which he was charged was left unanswered and that the applicant was entitled, under Article 6 para. 2 of the Convention, to be presumed innocent. When subsequently rejecting a compensation claim submitted by the applicant, the Court of Appeal stated that it appeared from the file that certain companies, under the management or orders of the applicant, had committed a number of fiscal offences and that neither the documents concerning the investigation nor the examination of the request for compensation created any doubt about the correctness of the applicant's conviction by the Regional Court. This statement cannot be interpreted as only referring to a remaining suspicion against the applicant. It must be read as meaning that, in the Court of Appeal's view, the applicant's conviction in first instance would have been upheld on appeal if the appeal proceedings had not been discontinued. Such an evaluation of what would have been the outcome of the appeal proceedings cannot be considered to be consistent with the applicant's right under Article 6 para. 2 to be presumed innocent in respect of offences of which he had not been convicted by a final judgment. APPENDIX I HISTORY OF THE PROCEEDINGS Date Item _________________________________________________________________ 29 June 1990 Introduction of the application 17 October 1990 Registration of the application Examination of admissibility 2 September 1992 Commission's decision to communicate the application to the respondent Government and to invite them to submit observations on admissibility and merits of the application 15 January 1993 Government's observations 22 May 1993 Applicant's observations in reply 8 January 1993 Commission's decision to declare the application partly admissible and partly inadmissible Examination of the merits 21 December 1993 Decision on admissibility transmitted to parties. Invitation to parties to submit further observations on the merits 28 January 1994 Government's statement that they do not wish to submit further observations 5 March 1994 Applicant's further observations 17 March 1994 Applicant's further observations 13 April 1994 Government's reply to applicant's submissions of 17 March 1994 5 May 1994 Applicant's further observations 6 September 1994 Commission's consideration of state of proceedings 12 October 1994 Commission's deliberations on the merits, final vote and adoption of the Report
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