AS TO THE ADMISSIBILITY OF
Application No. 22078/93
by N.D.
against the Netherlands
The European Commission of Human Rights (Second Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. S. TRECHSEL, President
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
Mr. K. ROGGE, 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 7 May 1993
by N.D. against the Netherlands and registered on 17 June 1993
under file No. 22078/93;
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 1955, and
currently resides at Kensington, Maryland, USA. Before the
Commission he is represented by J.C. Houtappel, a lawyer
practising in Amsterdam.
The facts of the case, as submitted by the applicant, may
be summarised as follows.
On 15 January 1986 a fire ravaged five buildings in
Willemstad, Curaçao, the Netherlands Antilles, among which the
"Al Panino" building owned by the applicant and his family. The
building was mortgaged at the Maduro & Curiëls Bank and was
insured against fire and commercial losses as a result of fire
by the insurance company Fatum. An investigation as to the cause
of the fire was made by the police and inspectors of Fatum. As
the circumstances appeared rather suspicious (traces and
declarations by the fire brigade and witnesses indicated that the
fire had started in the part of the building which was in use by
the applicant, there were several seats of the fire, there were
a number of explosions and the fire seemed to have been lit
intentionally) and as it appeared that the applicant found
himself in financial difficulties and had substantively increased
the insured amount shortly before the fire, the applicant was
arrested on the suspicion of arson and detained in police
custody. At some later point in time the prosecution authorities
conditionally dropped the arson charges against the applicant for
lack of evidence.
The Maduro & Curiëls Bank, as mortgage holder and therefore
entitled to receive a part of a possible payment under the
applicant's fire insurance policy, on 22 August 1986 started
civil proceedings against Fatum claiming payment under the fire
insurance policy. Fatum contested this claim, alleging that the
applicant was responsible for the fire by having committed arson.
The prosecution authorities allowed Fatum to make use of
documents on the investigation of the fire by the police in these
civil proceedings. Following interlocutory judgments of 22
February 1988, 15 August 1988 and 6 November 1989, the Court of
First Instance (Gerecht in eerste aanleg) of Curaçao in its
judgment of 25 June 1990 found in favour of Fatum.
The appeal by Maduro & Curiëls Bank was rejected by the
Netherlands Antilles and Aruba Court of Appeal (Gemeenschappelijk
Hof van Justitie van de Nederlandse Antillen en Aruba) on 18
December 1990. The subsequent appeal in cassation by the Maduro
& Curiëls Bank was rejected by the Supreme Court (Hoge Raad) on
19 June 1992.
On 14 October 1988 the applicant started civil proceedings
against Fatum for his share in the insurance claim. Following an
interlocutory judgment of 5 June 1989, the Court of First
Instance, in its decision of 20 August 1990, rejected the
applicant's claim. The Court considered, inter alia, that the
circumstantial evidence as established in the proceedings between
the Maduro & Curiëls Bank and Fatum had remained irrefuted. It
accepted that the applicant bore a certain responsibility for the
fire, which entailed that all his claims must be rejected ("omdat
ons vermoeden als niet weerlegd geldt staat vast dat Noah Dan
merkelijke schuld treft aan de brand en dit brengt met zich dat
alle vorderingen van Noah Dan moeten worden afgewezen").
The applicant's appeal was rejected on 25 June 1991 by the
Netherlands Antilles and Aruba Court of Appeal, which upheld the
judgment of 20 August 1990. It was noted in the judgment that the
applicant did not dispute the facts as established in the case
between the Bank and Fatum as a starting point for the
examination of the case between himself and Fatum.
The applicant's appeal in cassation was rejected by the
Supreme Court on 11 December 1992. Insofar as the applicant
complained about the Court of Appeal's finding in favour of Fatum
on the basis of the assumption that the applicant was to a
certain extent responsible for the fire ("merkelijke schuld") in
view of the circumstantial evidence, the Supreme Court noted that
the Court of Appeal's assumption was based on reasonable grounds
and that the Court of Appeal's findings, after having assessed
the evidence, were understandable and consistent. The Supreme
Court further considered it could not examine complaints made in
the cassation appeal relating to the Court of Appeal's assessment
of the evidence as this belongs to the competence of the trial
courts.
COMPLAINTS
The applicant complains under Article 6 paras. 1 and 2 of
the Convention that he did not receive a fair trial in the civil
proceedings he started against Fatum. He claims in particular
that the domestic courts presumed him guilty of arson although
no criminal proceedings had been brought against him for lack of
evidence, whilst the same presumption was also made in the
proceedings between the Maduro & Curiëls Bank and Fatum in which
he was not even a party and thus unable to defend himself against
the presumption. He also complains that the domestic courts
failed to use in evidence certain expert reports and accepted the
evidence submitted by Fatum. He submits that his case should have
been decided first, i.e. before the proceedings between the
Maduro & Curiëls Bank and Fatum had been decided.
The applicant finally complains under Article 8 of the
Convention that the public prosecutor handed over police reports
of the fire to Fatum, which used them in the civil proceedings
to support its claims.
THE LAW
1. The applicant complains that the presumption of innocence
was not respected in the civil proceedings he started against
Fatum. He relies in this respect on Article 6 para. 2 (Art. 6-2)
of the Convention which provides that:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission observes that the proceedings at issue were
of a civil nature and that they did not involve any determination
of a criminal charge to which the presumption of innocence would
have applied, nor that they have been shown to have had any
influence on any criminal proceedings against the applicant.
However, despite the wording of Article 6 para. 2 (Art. 6-2)
of the Convention, which secures the presumption of innocence to
"everyone charged with a criminal offence", this provision has
been consistently interpreted as also applying to situations
where the person concerned is not or no longer formally charged
with a criminal offence (eg. Eur. Court H.R., Minelli judgment
of 15 March 1983, Series A no. 62, pp. 15 - 16, para. 30). The
presumption of innocence is to be observed not only by the
criminal court trying a case, but also by other public
authorities, including courts other than those which are
competent to determine a criminal charge (cf. Allenet de Ribemont
v. France, Comm. Report 12.10.93, paras. 66-67).
The Commission recalls that a distinction must be made
between civil proceedings and criminal proceedings arising out
of the same events. By virtue of the different standards of proof
normally observed in such proceedings, acquittal at the end of
a criminal trial, because the accused has not been shown guilty
of an offence beyond all reasonable doubt, does not necessarily
preclude that same person's civil liability on the balance of
probabilities (No. 11882/85, Dec. 7.10.87, D.R. 54 p. 162).
The Commission observes that in the present case the civil
trial courts did not express themselves on the question whether
or not the applicant had committed arson. The domestic courts
merely found that that the applicant bore a certain
responsability for the fire, which must be distinguished from the
question whether or not he was guilty of a criminal offence.
It follows that this aspect of the applicant's case is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant states that the domestic courts have violated
Article 6 para. 1 (Art. 6-1) of the Convention by failing to use
in evidence certain expert reports and accepting the evidence
submitted by Fatum. He further submits that his case should have
been decided first, i.e. before the proceedings between the
Maduro & Curiëls Bank and Fatum had been decided.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and obligations
(...), everyone is entitled to a fair (...) hearing (...)
by a (...) tribunal (...)."
The Commission recalls that, according to its constant case-
law, the evaluation of evidence is a matter which necessarily
comes within the appreciation of the independent and impartial
courts and cannot be reviewed by the Commission unless there is
an indication that the judge has drawn grossly unfair or
arbitrary conclusions from the facts before him. The task of the
Convention organs is not to interfere with the legal assessment
of a particular claim made by the competent courts under the
domestic law, but rather to ascertain whether the proceedings
considered as a whole, including the way in which the evidence
was taken, were fair (cf. No. 7987/77, Dec. 13.12.79, D.R. 18 p.
31; No. 10000/82, Dec. 4.7.83, D.R. 33 p. 247; No. 10153/82, Dec.
13.10.86, D.R. 49 p. 67).
The Commission finds no indication in the case-file that the
applicant's rights have been disrespected in the civil
proceedings at issue. He has been given every opportunity to
adduce material he considered relevant and to challenge the
material submitted by Fatum and the courts' findings in the
related case between the Maduro & Curiëls Bank and Fatum. As was
noted by the courts, the applicant did not dispute the facts as
established in the case between the Bank and Fatum as a starting
point for the examination of the case between himself and Fatum.
The Commission finally notes that the applicant was free to
assist the Maduro & Curiëls Bank in their proceedings against
Fatum, having regard to the fact that they shared a common
interest, i.e. the payment by Fatum of the insurance claim.
The Commission therefore finds that, insofar as the
applicant did raise his present complaints before the domestic
courts, there is no indication that he did not receive a fair
hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. It follows that this complaint must also be rejected
under Article 27 para. 2 (Art. 27-2) of the Convention as
manifestly ill-founded.
3. The applicant finally complains under Article 8 (Art. 8) of
the Convention that the public prosecutor handed over police
reports of the fire to Fatum.
The Commission notes that the applicant, insofar as he has
substantiated this complaint, did not raise it, either in form
or in substance, during the domestic proceedings.
The Commission, therefore, finds that in this respect the
applicant has failed to exhaust domestic remedies within the
meaning of Article 26 (Art. 26) of the Convention and that this
complaint must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second
Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy