Z. v. THE NETHERLANDS



                           PARTIAL

                      AS TO THE ADMISSIBILITY OF

                      Application No. 15379/89

                      by J.Z.

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting

in private on 1 April 1992, the following members being present:

             MM.  S. TRECHSEL, President of the Second Chamber

                  G. JÖRUNDSSON

                  A. WEITZEL

                  H. G. SCHERMERS

                  H. DANELIUS

             Mrs. G. H. THUNE

             MM.  F. MARTINEZ

                  L. LOUCAIDES

                  J.-C. GEUS

                  A.V. ALMEIDA RIBEIRO

             Mr.  K. ROGGE, Secretary to the Second 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 2 June 1989 by

J.Z. against the Netherlands and registered on 18 August 1989 under

file No. 15379/89;

      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 citizen, born in 1919 and at present

residing in Meeuwen-Gruitrode (Belgium).  In the proceedings before the

Commission he is represented by Mr. A. Duynstee, a lawyer practising

in Maastricht, the Netherlands.

      The facts, as submitted by the applicant, may be summarised as

follows.

      On 11 May 1984, the applicant was arrested and charged with

bribery of a public official, forgery and use of forged documents.  On

29 January 1985, the applicant was released on condition that he

provided bail of 350.000 Dutch guilders and that he reported to the

investigating judge (Rechter-Commissaris) every week.  This latter

condition was lifted on 14 February 1986.

      On 24 June 1987, the Regional Court (Arrondissementsrechtbank)

of Maastricht found the applicant guilty of some of the charges of

bribery of a public official and forgery and acquitted him of the other

charges. The Court sentenced the applicant to one year's imprisonment.

Both the applicant and the public prosecutor appealed against this

judgment.

      On 7 June 1988, the Court of Appeal (Gerechtshof) of

's-Hertogenbosch acquitted the applicant.  His co-accused  M., a public

official, was also acquitted of the charges of accepting bribes,

cheating, forgery and the use of forged documents, after part of the

original charges against him had been declared null and void.

      On 5 September 1988, the applicant presented a request for

compensation on the basis of Section 89 of the Code of Criminal

Procedure (Wetboek van Strafvordering) which provides, inter alia,

that an acquitted person can request compensation by the State for

material and non-material damage, caused by the detention on remand.

Section 90 para. 1 of the same Code provides:

      "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."

      "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."

      On the same day, the applicant also presented a request for

reimbursement of the legal and subsidiary costs provisionally estimated

at 486.394,60 Dutch guilders - among which 470.000 guilders for

lawyers' fees - on the basis of Section 591 (a) para. 2 of the Code of

Criminal Procedure.  This provision reads:

      "2. Indien de zaak eindigt zonder oplegging van straf of

      maatregel kan aan de gewezen verdachte ... een vergoeding

      worden toegekend voor de schade welke hij ten gevolge van

      tijdverzuim door het gerechtelijk vooronderzoek en de

      behandelig der zaak ter terechtzitting werkelijk heeft

      geleden, alsmede in de kosten van een raadsman."

      "2. If a case comes to an end without imposition of a

      punishment or a measure, compensation may be granted to the

      former suspect ... for the damage which he has actually

      suffered as a result of loss of time due to the judicial

      criminal investigation and the trial itself, as well as the

      fees of a counsel."

      On 9 December 1988, the Court of Appeal of 's-Hertogenbosch,

sitting in camera, rejected the request for compensation arguing that

there was no reasonable ground for granting it.  The Court stated that

the applicant had been arrested and detained on remand on suspicion of

having bribed a public official and that this suspicion had continued

during the examination of the criminal case by the Court of Appeal.

The applicant had been acquitted of the specific charge of bribery, but

during its examination of the criminal charges, the Court had found

established that the applicant had made some payments to M., his co-

accused, and it had come, on the basis of lawful and serious

indications, to the conclusion that part of these payments had been

made following an illicit arrangement, although the latter

circumstances had not been included as such in the original indictment.

      On the same day, the President of the Court of Appeal granted,

on the basis of Section 591 (a) para. 1 of the Code of Criminal

Procedure, reimbursement of 3.559,80 guilders for travelling and

subsistence costs (reis- en verblijfkosten).  He rejected the remainder

of the request.  The President of the Court, referring to the decision

given the same day by the Court of Appeal, pointed out that there had

been some reasonable suspicions that the applicant had committed the

offence of bribery of a public official, though he had been acquitted

of this charge.  It also pointed out that the applicant had from the

very beginning of the investigation misled the officers involved in the

investigation and the courts and caused an exceptionally elaborate

inquiry.  Under these circumstances, the President of the Court found

no reason to compel the State to meet the costs which were mainly due

to the applicant's behaviour which had not only caused great expenses

for him but also for the State.

COMPLAINTS

1.    Invoking Article 6 para. 1 of the Convention, the applicant

complains that he was denied compensation and reimbursement of the

legal and subsidiary costs after acquittal.  He submits that this

provision guarantees a right to compensation for detention on remand

undergone by a person who is subsequently acquitted of all charges, as

well as a right to reimbursement of the necessary expenses of an

acquitted person and to compensation for all the (material and non-

material) damage suffered by this person.

      The applicant also complains under Article 6 para. 1 of the

Convention that his request was not examined in public by an impartial

tribunal, though these proceedings concerned the determination of civil

rights and obligations.

2.    The applicant also complains that the reasons given in the

decisions rejecting his requests for compensation infringe the

presumption of innocence guaranteed by Article 6 para. 2 of the

Convention.

3.    The applicant finally complains that Dutch law does not guarantee

any right of appeal against decisions relating to compensation and

reimbursement of the necessary legal expenses after acquittal.

Invoking Article 13 of the Convention, he complains that he had no

effective remedy to redress the violations of the Convention committed

by the Court of Appeal and its President in the judgments of 9 December

1988.

THE LAW

1.    The applicant complains that he was denied compensation and

reimbursement of the legal and subsidiary costs after acquittal.

      Invoking Article 6 para. 1 (Art. 6-1) of the Convention, he

complains that neither of his requests were examined in public by an

impartial tribunal, as required by Article 6 para. 1 (Art. 6-1) of the

Convention.

      Article 6 para. 1 (Art. 6-1), first sentence, of the Convention

reads:

      "In the determination of his civil rights and obligations

      or of any criminal charge against him, everyone is entitled

      to a fair and public hearing within a reasonable time by an

      independent and impartial tribunal established by law."

      As there can be no doubt that the proceedings did not concern a

criminal charge against the applicant, the Commission first has to

consider whether there was a dispute concerning a right and, if so,

whether the right was a civil right.

      The Commission considers that it cannot, on the basis of the

file, determine whether there was a dispute concerning a civil right

and, if so, whether there has been a violation of Article 6 (Art. 6)

in these proceedings without the observations of both parties.

      The Commission therefore adjourns this part of the application.

2.    The applicant also complains that the reasons given in the

decisions rejecting his requests for compensation infringe the

presumption of innocence guaranteed by Article 6 para. 2 (Art. 6-2) of

the Convention.

      Article 6 para. 2 (Art. 6-2) of the Convention provides as

follows:

      "2.  Everyone charged with a criminal offence shall be

      presumed innocent until proved guilty according to law."

      The Commission first notes that it cannot be excluded from a

reading of the text of this Article that it may impose an obligation

to respect the presumption of innocence on tribunals which are not

directly involved in the determination of criminal charges in a

particular case.  This follows from the very general terms of this

provision, both in its English and French texts (cf. No. 10427/87, Dec.

12.5.86, D.R. 47 pp. 85, 91).

      The application of Article 6 para. 2 (Art. 6-2) is therefore not

limited to procedures where a prosecution ends in the conviction or

acquittal of the accused.

      According to the jurisprudence of the Convention organs the

presumption of innocence enshrined in Article 6 para. 2 (Art. 6-2) will

be violated if, without the accused having previously been proved

guilty according to law, the judicial decision concerning compensation

reflects an opinion that he is guilty (Eur. Court H.R., Nölkenbockhoff

judgment of 25 August 1987, Series A no. 123, p. 79, para. 37).

      In this respect, the European Court of Human Rights found it to

be decisive first whether or not "the courts confined themselves in

substance to noting the existence of 'reasonable suspicion' that the

defendant had 'committed an offence'" and second whether or not the

decision in question amounted to "a penalty or a measure that can be

equated to a penalty" (Eur. Court H.R., Lutz judgment of 25 August

1987, Series A no. 123, pp. 25-26, paras. 62-63).

      In the present case, on 9 December 1988, the Court of Appeal of

's-Hertogenbosch decided that there were no reasonable grounds for

granting compensation under Section 89 of the Code of Criminal

Procedure and its President rejected the request for reimbursement of

lawyers' fees on the basis of Section 591 (a) of the same Code.  These

decisions were based, on the one hand, on the fact that there had been

some reasonable suspicions that the applicant had committed the offence

of bribery of a public official, though he had been acquitted of this

charge and, on the other hand, on the fact that the applicant had

adopted from the very beginning of the investigation a misleading

attitude which put the officers involved in the investigation and the

courts on a wrong track and led to an exceptionally extensive inquiry.

      The Commission considers that the decisions of 9 December 1988

did not contain any finding of guilt as to the original charges.

Furthermore, the Court of Appeal and its President, acting on an

equitable basis and having regard to the above-mentioned circumstances,

did not impose any sanctions on him, but merely refused to order that

his costs and expenses or any compensation should be paid out of public

funds (cf., mutatis mutandis, No. 11150/84, Dec. 9.12.87, unpublished).

      Consequently, the Commission finds that the decisions of 9

December 1988 do not amount to a violation of the principle of the

presumption of innocence as guaranteed in Article 6 para. 2 (Art. 6-2)

of the Convention.

      It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.    The applicant finally complains that Dutch law does not guarantee

any right of appeal against decisions relating to compensation or

reimbursement of the necessary legal expenses after acquittal.

Invoking Article 13 (Art. 13) of the Convention, he explains that he

had no effective remedy to redress the violations of the Convention

committed by the Court of Appeal and its President in the judgments of

9 December 1988.

      The Commission recalls that Article 13 (Art. 13) of the

Convention confers on everyone whose rights and freedoms guaranteed by

the Convention have been violated a right to an effective remedy before

a national authority.

      Insofar as the present complaint lies inside the scope of Article

6 (Art. 6) (see above, point 1), the Commission recalls its case-law,

according to which this provision does not require that there should

be several degrees of court jurisdictions (cf. No. 5849/72, Dec.

16.12.79, D.R. 1 p. 46; No; 12446/86, Dec. 5.5.88, unpublished).

Consequently, the applicant did not have, under Article 13 (Art. 13),

a right to a remedy against the decisions of the Court of Appeal of 9

December 1988.

      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.

      For these reasons, the Commission,

-     by a majority, DECIDES TO ADJOURN the examination of the

      complaint under Article 6 para. 1 (Art. 6-1) of the Convention

      as to the proceedings concerning the applicant's requests for

      compensation and reimbursement of legal and other costs

      after acquittal;

-     unanimously, DECLARES INADMISSIBLE the remainder of

      the application.

Secretary to the Second Chamber        President of the Second Chamber

    (K. ROGGE)                               (S. TRECHSEL)

 

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