European Court of Human Rights

On 16 March 1984, he noted that the applicants did not wish to file a memorial, and directed that the Agent should have until 16 May 1984 to do so and that the Delegate should be entitled to reply in writing within two months from the date of the transmission to him by the Registrar of the Government’s memorial (Rule 37 para. 1). On 3 April 1984, the President extended the first of these time-limits until 15 June 1984.

The Government’s memorial was received at the registry on 18 June 1984. On 31 August 1984, the Secretary to the Commission notified the Registrar that the Delegate would be presenting his comments at the hearings.

On 5 July, the President directed that the oral proceedings should open on 26 November 1984 (Rule 38). On 23 August, he granted to the applicants’ representatives leave to use the Dutch language (Rule 27 para. 3).

On 29 August 1984, Ms. van Westerlaak, the applicants’ advokate, notified the Court of her clients’ observations on the application of Article 50 (art. 50) of the Convention. Subsequently, those observations were supplemented by means of two letters which she filed during the hearings.

There appeared before the Court:

- for the Government

       Mr. C. J. Schneider, Permanent Representative

                            of the Netherlands to the Council of Europe,

                                                                                       Delegate of the Agent,

       Mr. E. Korthals Altes, Landsavocaat,                                 Counsel,

       Mrs. W. G. Schimmel-Bonder, Ministry of Justice,              Adviser;

- for the Commission

       Mr. S. Trechsel,                                                                     Delegate;

- for the applicants

       Ms. I. van Westerlaak, advokate,

       Mr. E. A. Alkema, Professor

                            at the University of Groningen,                                Counsel.

The Court heard addresses by Mr. Korthals Altes for the Government, by Mr. Trechsel for the Commission and by Ms. van Westerlaak and Mr. Alkema for the applicants, as well as their replies to its questions.

AS TO THE FACTS

I.   THE PARTICULAR CIRCUMSTANCES OF THE CASE

This incident, which occurred on the day after Miss Y’s sixteenth birthday, had traumatic consequences for her, causing her major mental disturbance.

The police officer said that since Mr. X considered his daughter unable to sign the complaint because of her mental condition, he could do so himself. The statement lodged by Mr. X read as follows: "In my capacity as father I denounce the offences committed by Mr. B on the person of my daughter. I am doing this because she cannot do so herself, since, although sixteen years of age, she is mentally and intellectually still a child."

In a supplementary memorial of 10 January 1979, he pointed out that subject to an exhaustive list of exceptions none of which applied in the instant case, a legal representative was entitled to act on behalf of the complainant.

The Court of Appeal dismissed the appeal on 12 July 1979. In fact, it considered it doubtful whether a charge of rape (Article 242 of the Criminal Code; see paragraph 14 below) could be proved. As for Article 248 ter (see paragraph 16 below), it would have been applicable in the instant case, but only if the victim herself had taken action. In the Court of Appeal’s view, the father’s complaint (Article 64 para. 1 of the Criminal Code; see paragraph 16 below) could not be regarded as a substitute for the complaint which the girl, being over the age of sixteen, should have lodged herself, although the police had regarded her as incapable of doing so; since in the instant case no one was legally empowered to file a complaint, there was on this point a gap in the law, but it could not be filled by means of a broad interpretation to the detriment of Mr. B.

II.   RELEVANT DOMESTIC LAW

Articles 244 and 245, respectively, make it a criminal offence to have sexual intercourse with a girl under the age of twelve or with a girl between the ages of twelve and sixteen, and under Article 247 it is a criminal offence to commit an indecent assault on boys or girls under the age of sixteen.

Articles 243 and 247 concern, respectively, sexual intercourse with, and indecent assault on, a woman known to the offender to be unconscious or helpless. According to the Supreme Court, however, the word "helpless" refers only to physical incapacity.

Article 249 relates to indecent acts committed with a minor who is in a position of dependence vis-à-vis the perpetrator.

Finally, Article 239 concerns indecency, either in public or while another person is present against his will.

Save for Article 245, none of these provisions makes the institution of criminal proceedings conditional on the filing of a complaint by the victim.

Under Article 64 para. 1, however, the legal representative may lodge the complaint on behalf of the victim if the latter is under the age of sixteen or is placed under guardianship (curateele); this latter institution exists only for persons who have reached the age of majority, namely twenty-one (Article 378, Book I, of the Civil Code).

PROCEEDINGS BEFORE THE COMMISSION

- as regards Miss Y,

that there had been a breach of Article 8 (art. 8) of the Convention (unanimously), but not of Article 3 (art. 3) (fifteen votes against one);

that it was not necessary to examine the application either under Article 14 taken in conjunction with Article 8 (art. 14+8) or Article 3 (art. 14+3), or under Article 13 (art. 13);

- as regards Mr. X, that no separate issue arose concerning his right to respect for family life.

The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to the present judgment.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

AS TO THE LAW

I.   ALLEGED VIOLATION OF ARTICLE 8 (art. 8), TAKEN ALONE, AS REGARDS MISS Y

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Government contested this claim; the Commission, on the other hand, agreed with it in its essentials.

1. Necessity for criminal-law provisions

The Court, which on this point agrees in substance with the opinion of the Commission, observes that the choice of the means calculated to secure compliance with Article 8 (art. 8) in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. In this connection, there are different ways of ensuring "respect for private life", and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue. Recourse to the criminal law is not necessarily the only answer.

The Government stated that under Article 1401 of the Civil Code, taken together with Article 1407, it would have been possible to bring before or file with the Netherlands courts, on behalf of Miss Y:

- an action for damages against Mr. B, for pecuniary or non-pecuniary damage;

- an application for an injunction against Mr. B, to prevent repetition of the offence;

- a similar action or application against the directress of the children’s home.

The applicants considered that these civil-law remedies were unsuitable. They submitted that, amongst other things, the absence of any criminal investigation made it harder to furnish evidence on the four matters that had to be established under Article 1401, namely a wrongful act, fault, damage and a causal link between the act and the damage. Furthermore, such proceedings were lengthy and involved difficulties of an emotional nature for the victim, since he or she had to play an active part therein.

Moreover, as was pointed out by the Commission, this is in fact an area in which the Netherlands has generally opted for a system of protection based on the criminal law. The only gap, so far as the Commission and the Court have been made aware, is as regards persons in the situation of Miss Y; in such cases, this system meets a procedural obstacle which the Netherlands legislature had apparently not foreseen.

2. Compatibility of the Netherlands legislation with Article 8 (art. 8)

According to the applicants, on the other hand, the current Criminal Code offered insufficient protection (see paragraphs 41-43 of the Commission’s report).

Article 248 ter requires a complaint by the actual victim before criminal proceedings can be instituted against someone who has contravened this provision (see paragraph 16 above). The Arnhem Court of Appeal held that, in the case of an individual like Miss Y, the legal representative could not act on the victim’s behalf for this purpose. The Court of Appeal did not feel able to fill this gap in the law by means of a broad interpretation to the detriment of Mr. B. It is in no way the task of the European Court of Human Rights to take the place of the competent national courts in the interpretation of domestic law (see, mutatis mutandis, the Handyside judgment of 7 December 1976, Series A no. 24, p. 23, para. 50); it regards it as established that in the case in question criminal proceedings could not be instituted on the basis of Article 248 ter.

As for Article 239 para. 2 (see paragraph 15 above), this is apparently designed to penalise indecent exposure and not indecent assault, and was not clearly applicable to the present case. Indeed, no one, even the public prosecutor’s office, seems to have considered utilising this provision at the time, or even referring to it at the outset of the Strasbourg proceedings.

II.   ALLEGED VIOLATION OF ARTICLE 14, TAKEN IN CONJUNCTION WITH ARTICLE 8 (art. 14+8), AS REGARDS MISS Y

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Government disputed this contention. The Commission considered that no separate issue arose.

The Court accordingly does not deem it necessary to examine the case under Article 14 as well.

III.  ALLEGED VIOLATION OF ARTICLE 3, TAKEN ALONE (art. 3) OR IN CONJUNCTION WITH ARTICLE 14 (art. 14+3), AS REGARDS MISS Y

At the hearings, the Government adopted this opinion and submitted that they were not answerable for the treatment inflicted on Miss Y.

Having found that Article 8 (art. 8) was violated, the Court does not consider that it has also to examine the case under Article 3, taken alone (art. 3) or in conjunction with Article 14 (art. 14+3).

IV.   ALLEGED VIOLATION OF ARTICLE 13 (art. 13) AS REGARDS MISS Y

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

They maintained, in particular, that the possibility of appealing, under Article 12 of the Code of Criminal Procedure, to the Arnhem Court of Appeal did not constitute a remedy of this description.

For the Government, on the other hand, this was a procedure designed to ensure that the criminal law was being correctly applied. The fact that the procedure did not serve the particular purpose did not mean that it did not exist.

The Commission expressed the opinion that it could not be deduced from Article 13 (art. 13) that there had to be a remedy against legislation as such which was considered not to be in conformity with the Convention.

This being so, the Court does not have to examine the same issue under Article 13 (art. 13).

V.   THE COMPLAINTS OF MR. X

The Commission considered that no separate issue arose in this respect.

Counsel for the applicants did not revert to this aspect of the case at the hearings. The Court therefore sees no necessity to give a decision thereon.

VI.   ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

In her letter of 27 August 1984, Ms. van Westerlaak explained that "approximately seven years after the event, the girl in question is still experiencing daily the consequences of the indecent assault of which she was the victim" and that "this is the source of much tension within the family". Ms. van Westerlaak stated at the hearings that non-pecuniary damage was still being suffered.

The Commission did not comment on these allegations.

The Government also did not challenge the allegations as such, but they argued that the suffering was the result of the act committed by Mr. B and not of the violation of the Convention. Accordingly, there was no reason to afford just satisfaction.

The applicants left it to the Court’s discretion to determine a standard for compensation.

The damage in question does not lend itself even to an approximate process of calculation. Assessing it on an equitable basis, as is required by Article 50 (art. 50), the Court considers that Miss Y should be afforded just satisfaction which it fixes at 3,000 Dutch Guilders.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 8 (art. 8) as regards Miss Y;

2. Holds that it is not necessary to give a separate decision:

(a) on her other complaints;

(b) on the complaints of Mr. X;

3. Holds that the respondent State is to pay to Miss Y three thousand (3,000) Dutch Guilders under Article 50 (art. 50).

Done in English and in French, and delivered at a public hearing at the Human Rights Building, Strasbourg, on 26 March 1985.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar