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GEERINGS v. THE NETHERLANDS - 30810/03 [2007] ECHR 191 (1 March 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/191.html
Cite as:
24 BHRC 365,
[2007] ECHR 191,
(2008) 46 EHRR 49
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THIRD
SECTION
CASE OF
GEERINGS v. THE NETHERLANDS
(Application
no. 30810/03)
JUDGMENT
STRASBOURG
1 March
2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Geerings v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr C. Bîrsan,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Berro-Lefèvre, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 8 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 30810/03) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) on 23 September 2003 by a
Netherlands national, Mr Gerardus Antonius Marinus Geerings.
The
applicant was represented by Ms T. Spronken, a lawyer practising in
Maastricht. The Netherlands Government (“the Government”)
were represented by their Agents, Mr R.A.A. Böcker and Mrs J.
Schukking of the Ministry for Foreign Affairs.
The
applicant alleged that the confiscation order imposed on him
infringed his right to be presumed innocent under Article 6 § 2
of the Convention since it was based on a judicial finding that he
had derived advantage from offences of which he had been acquitted in
the substantive criminal proceedings that had been brought against
him.
On
5 July 2006 the Court decided to communicate the application to the
Government. Under Article 29 § 3 of the Convention, it decided
to examine the merits of the application at the same time as its
admissibility.
THE FACTS
The
applicant, Gerardus A.M. Geerings, is a Netherlands national who was
born in 1977 and lives in Eindhoven.
A. The circumstances of the case
The
facts of the case, as submitted by the parties, may be summarised as
follows.
On an
unspecified date, the applicant was arrested and placed in pre-trial
detention on suspicion of involvement – together with others –
in various (attempted) thefts of lorries containing merchandise and
thefts of merchandise from lorries (inter alia, washing
machines, laundry dryers and other household appliances, telephones,
computer parts, car radios, audio-visual devices and materials,
clothes, bags, shoes, camping and sports equipment) committed between
1 August 1996 and 28 October 1997.
On
23 December 1997, the applicant was summoned to appear before the
Regional Court (arrondissementsrechtbank) of 's Hertogenbosch
on 29 January 1998 in order to stand trial on various charges of
(attempted) burglary, deliberately handling stolen goods and
membership of a criminal organisation. Separate criminal proceedings
were brought against a number of co-accused.
In
its judgment of 20 May 1998, the Regional Court
(arrondissementsrechtbank) of 's-Hertogenbosch convicted the
applicant of several counts of participation in (attempted) burglary,
deliberately handling stolen goods and membership of a criminal
organisation. The Regional Court found it established that the
applicant had been involved in the theft of 120 laundry dryers from a
lorry and a trailer; the theft of a lorry; the theft of large numbers
of telephones, computer parts and car radios from a lorry; the theft
of 300 CD auto changers, 62 radio cassette players and a speaker
sound system from a truck; the theft of large quantities of inter
alia audio devices, dishwashers, shoes, vacuum cleaners and
clothing from lorries and thefts of lorries; the handling of one or
more stolen video cameras; the attempted theft of a lorry and the
attempted theft of goods from a lorry. It sentenced the applicant to
five years' imprisonment less the time spent in pre-trial detention.
The
applicant lodged an appeal with the Court of Appeal (gerechtshof)
of 's-Hertogenbosch. In its judgment of 29 January 1999, the
Court of Appeal quashed the judgment of 20 May 1998, convicted the
applicant of having participated on 28 or 29 September 1997 in the
theft of a lorry and a trailer containing 120 laundry dryers, of
having on 25 September 1997 stolen a lorry combination and a
number of printers and of having handled – in the period
between 1 August 1996 and 28 October 1997 – a
piece of clothing and a video camera in the knowledge that these
items had been obtained through crime. It acquitted the applicant of
the remainder of the charges, having found that these had not been
lawfully and convincingly proved. The Court of Appeal sentenced him
to thirty-six months' imprisonment of which twelve months were
suspended for a probationary period of two years. In addition, it
declared inadmissible the compensation claim filed by the civil party
(benadeelde partij). Finding this claim to be too complicated
to be dealt with in criminal proceedings, the Court of Appeal decided
that it should be brought before a civil court.
In
the meantime, on 7 January 1999, the public prosecutor had summoned
the applicant to appear before the Regional Court of 's Hertogenbosch
on 4 February 1999 in order to be heard on the prosecutor's request
for an order for the confiscation of illegally obtained advantage
(vordering tot ontneming van wederrechtelijk verkregen voordeel)
within the meaning of Article 36e of the Criminal Code (Wetboek
van Strafrecht), which had been assessed by the public prosecutor
at a total amount of 147,493 Netherlands guilders (NLG i.e. 67,020.16
euros [EUR]).
At
the hearing held before the Regional Court on 4 February 1999, the
prosecutor maintained the request for a confiscation order, arguing
that it also concerned similar offences as referred to in Article 36e
§ 2 of the Criminal Code and that, although the Court of Appeal
had acquitted the applicant of most of the offences he had been
charged with, there remained sufficient indications that he had
committed them. The applicant argued that a confiscation order could
only be imposed in respect of the offences of which he had been found
guilty. This would, according to the prosecutor's assessment, result
in a confiscation order for an amount of NLG 13,989 (EUR
6,347.93) at most.
In
its ruling of 18 March 1999, the Regional Court issued a confiscation
order for the amount of NLG 13,898, to be replaced, if this sum was
not paid or recovered, by 110 days' detention in lieu. It held that
the acquittal in the judgment handed down by the Court of Appeal on
29 January 1999, for which no specific reasons were given, could
therefore only be understood as meaning that there were no
indications that the applicant had committed the offences concerned,
let alone that he might have derived any resulting advantage.
The
applicant, but not the public prosecutor, filed an appeal against
this ruling with the Court of Appeal of 's-Hertogenbosch. The
applicant denied having derived any advantage from the offences of
which he had been convicted.
In
its decision of 30 March 2001, following a hearing held on
15 February 2001, the Court of Appeal quashed the ruling of 18
March 1999 and imposed a confiscation order in the amount of NLG.
147,493, to be replaced, if this sum was not paid or recovered, by
490 days' detention in lieu. Its reasoning included the following:
“[The applicant's acquittal] on appeal of a number
of offences [with which he had been charged] does not lead to the
conclusion that those offences, in view of their nature, can no
longer be considered as similar offences within the meaning of
Article 36e § 2 of the Criminal Code. The relevant applicable
statutory provisions do not oppose this in any way. In addition to
the condition of similarity, it is only required that there exist
sufficient indications that [the applicant] has committed the
offences concerned.
The court is therefore of the opinion that it can still
consider, in respect of all offences on which the public prosecutor
has based the [request for a confiscation order], whether there exist
sufficient indications [that the applicant has committed them].
By judgment of 29 January 1999 of the 's-Hertogenbosch
Court of Appeal, [the applicant] has been convicted of ...
Pursuant to Article 36e of the Criminal Code it must be
examined whether, and if so to what extent, the defendant has
illegally obtained advantage – including savings in costs –
by means of or from the proceeds of the offences found proved, of
similar offences or of other offences in respect of which there exist
sufficient indications that they have been committed by the defendant
and for which a fifth-category fine may be imposed.
The court finds that [the applicant] has not only
illegally obtained advantage from the above-cited offences ... found
proven, but has also obtained advantage from the following similar
offences, all set out in the initiatory summons served on [the
applicant] ... in respect of which [offences] there are sufficient
indications that they have been committed by him.
The amount fixed by the court as the estimated advantage
obtained by [the applicant] is set out after each of the
offences.
count 2B of the initiatory summons, referred to as case
5; advantage NLG 12,000;
count 3 of the initiatory summons, referred to as case
23; advantage NLG 3,102;
count 4b of the initiatory summons, referred to as case
10; advantage NLG 12,500;
count 4c of the initiatory summons, referred to as case
13; advantage NLG 8,000;
count 4d of the initiatory summons, referred to as case
16; advantage NLG 1,619;
count 4e of the initiatory summons, referred to as case
17; advantage NLG 12,600;
count 4f of the initiatory summons, referred to as case
20; advantage NLG 17,637;
count 4g of the initiatory summons, referred to as case
22; advantage NLG 4,222;
count 4h of the initiatory summons, referred to as case
27; advantage NLG 30,670;
count 4i of the initiatory summons, referred to as case
31; advantage NLG 20,000;
count 4m of the initiatory summons, referred to as case
43; advantage NLG 11,354.
The court will fix the estimated advantage obtained by
[the applicant] from the offences found proven, in accordance with
the decision of the Regional Court, in the following amounts:
count 1 of the initiatory summons, referred to as case
3; advantage NLG 3,789;
count 4 of the initiatory summons, referred to as case
9, advantage NLG 10,000.
The court, therefore, fixes the amount of the estimated
illegally obtained benefits by [the applicant] at NLG 147,493.
The court derives the assessment of the [applicant's]
illegally obtained advantage inter alia from a procès-verbal
of the Organised Crime Unit, Financial Desk/BFO of the Criminal
Investigation Department of the South-East Brabant Regional Police of
4 September 1998, reference PL2219/98-050011, in particular as
regards the calculation of the proceeds of the stolen goods and the
distribution of the proceeds between those concerned.
The means of evidence used by the court are set out in
the addendum as referred to in Article 365a and 365b of the Code of
Criminal Procedure (Wetboek van Strafvordering); this
addendum is appended to this ruling. ...
It was argued in the appeal proceedings by and on behalf
of the [applicant] that he had never received a pecuniary
remuneration for his part in the offences in which he was involved.
The court rejects this argument, since the court has become
convinced, on grounds of the evidence cited above, that the
[applicant] participated in a group of persons who were
systematically involved in a very lucrative manner in the theft of
costly goods from lorries, and that it is wholly implausible that the
[applicant] should not have obtained his part of the proceeds of
those goods that, according to the cited means of evidence, have
often demonstrably been sold for good money...”
In
relevant part, the police procès-verbal of 4 September 1998,
as appended to this ruling, reads as follows:
“Determination of the illegally obtained
benefit:
A. Where amounts of money received are known
The starting point in determining the amount of
illegally obtained advantage under Article 36e of the Criminal Code
is the advantage actually obtained by the suspected/convicted person.
In several of the incidents investigated, the amount of
money that was paid by the receivers of stolen goods to the thieves
and/or other receivers of stolen goods for the goods stolen appears
from recorded intercepted conversations and/or statements.
These amounts have been ascribed, as illegally obtained
benefit, to the perpetrator(s) and, where appropriate, divided evenly
among the persons concerned.
Relevant costs incurred by the suspect(s) have been
taken into account
B. Where amounts of money received are not
specifiable
The following is apparent from the criminal
investigation.
It appears from the appended intercepted conversation
(appendix 3) that the ... receiver of stolen goods F.T. paid 25% of
the wholesale trade value to the thieves....
It appears from the appended intercepted conversation
(appendix 4) that a receiver of stolen goods (E.V.), when calculating
in accordance with normal practice, reckons one fifth. This
presumably means 1/5 part of the retail price ... Where there is no
specific information about the amounts of money received by the
thieves and/or receivers of stolen goods, the illegally obtained
benefit was assessed on the basis of the wholesale purchase value
excluding V.A.T. (Value Added Tax) of the stolen goods.
Calculation in respect of the thieves
With regard to incidents where it does not appear from
the investigation what was paid by the receivers of stolen goods to
the thieves, it has been assumed that an amount of 25% of the
wholesale purchase value excluding V.A.T. of the goods stolen was
paid to the thieves.
Applying this estimate results in a lower amount for
illegally obtained benefit than an estimate based on 25% of the
wholesale trade value or 20% of the retail price as the case may be.
This is to the advantage of the suspect(s).”
In
respect of each of the counts 2B, 3, 4b-i and 4m, as set out in the
initiatory summons issued in the applicant's case, the procès-verbal
of 4 September 1998 – in so far as it was used in evidence
by the Court of Appeal in the confiscation proceedings –
contains a statement that, in the substantive criminal proceedings in
first instance, the applicant was convicted of the charge concerned.
It further appears from this procès-verbal that, in respect of
each of these counts, the estimate of the illegally obtained
advantage was mainly based on the contents of intercepted telephone
conversations in which the participants (thieves and handlers of
stolen goods) discussed money matters in relation to stolen goods,
the presence of some of the stolen goods in the homes of a number of
perpetrators, and the wholesale purchase value of the stolen goods.
The
applicant lodged an appeal in cassation with the Supreme Court (Hoge
Raad) against the ruling of 30 March 2001, complaining inter
alia that the imposition of a confiscation order in respect of
offences of which he had been acquitted violated his right to be
presumed innocent as guaranteed by Article 6 § 2 of the
Convention.
In
his advisory opinion, the Procurator General to the Supreme Court
considered – on the basis of the Court's considerations in its
judgment in the case of Phillips v. the United Kingdom (no.
41087/98, §§ 31-33 and 35, ECHR 2001-VII) – that the
scope of Article 6 § 2 of the Convention generally did not
extend to confiscation proceedings, but that this did not affect the
obligation to verify whether it followed from the particular
circumstances of the applicant's case nevertheless that an issue
under Article 6 § 2 arose nevertheless. On this point, the
Procurator General considered, on the basis of an extensive analysis
of the Court's case-law under Article 6 § 2, that the
question arose whether the conclusion of the Court of Appeal that
there were sufficient indications that the applicant had committed
offences similar to those of which he had been convicted entailed a
finding of “guilt”, taking into account that the
applicant had been acquitted of those similar offences.
The
Procurator General observed that the Court of Appeal had found that,
despite the acquittal, there were sufficient indications that the
offences of which the applicant had been acquitted had been committed
by him. In his opinion, this was incompatible with the general rule –
reaffirmed by the Court in its judgment in the case of Asan
Rushiti v. Austria (no. 28389/95, § 31, 21 March 2000,
– that following a final acquittal, even the voicing of
suspicions regarding an accused's innocence was impermissible and
incompatible with Article 6 § 2. Furthermore, the Court of
Appeal had based its finding in the confiscation proceedings on
evidence apparently insufficient for a criminal conviction and it
resulted in a decision imposed on the applicant of such a severity
that it should be regarded as a “penalty” within the
meaning of Article 7 § 1 of the Convention. Further taking into
account that the Court of Appeal had based its finding that there
were sufficient indications that similar offences had been committed
by the applicant also on a convicting, yet subsequently quashed,
judgment given by the Regional Court, the Procurator General was of
the opinion that the conclusion that Article 6 § 2 had been
violated was unavoidable. In his opinion, the possibility under
Article 36e § 2 of the Criminal Code to impose a confiscation
order was limited to offences not included in a charge brought, such
as offences appended to the summons for the court's information (ad
informandum gevoegde feiten) or other offences that were apparent
from the case file (andere feiten die blijken uit het
proces-verbaal), as mentioned in the Explanatory Memorandum in
respect of Article 36e § 2 of the Criminal Code. Consequently,
he advised the Supreme Court to accept the applicant's complaint
under Article 6 § 2, to quash the decision of 30 March 2001
and to remit the case to a different Court of Appeal for a fresh
determination of the applicant's appeal.
On
1 April 2003 the Supreme Court rejected the applicant's appeal
in cassation. It held, in so far as relevant, as follows:
“3.3. In its ruling of 22 May 2001, NJ
[Nederlandse Jurisprudentie –Netherlands Law Reports]
2001, no. 575, the Supreme Court held as follows:
-
The provisions of Article 36e of the Criminal Code and [Articles 551b
– 511i] of the Code of Criminal Procedure concern the
imposition of a measure on the person convicted of a punishable
offence, namely the obligation to pay a sum of money to the State for
the purposes of confiscating illegally obtained advantage. This does
not constitute a penalty, but a measure (maatregel) aimed at
the deprivation of illegally obtained advantage. The fact that the
imposition of that measure has been given a place in a criminal
procedure does not alter its particular character.
-
That particular character is also expressed in the requirements set
for imposing it. These requirements are less strict than those that
must be met for imposing a [criminal-law] penalty. Thus, the rules of
evidence applicable in criminal proceedings do not apply in their
entirety. Consequently, offences included in a criminal charge that
have resulted in an acquittal can still form the basis for the
imposition of a (confiscation) measure. Also in such a case, the
court will have to determine either that there exist sufficient
indications that a similar offence or similar offences, referred to
in Article 36e § 2 of the Criminal Code for which a fine of the
fifth category may be imposed, has/have been committed by the person
concerned, or that it is plausible that the other similar offences,
referred to in Article 36e § 3 of the Criminal Code, have in
some way resulted in the illegal obtaining of advantage by the person
concerned. Such a determination is preceded by the procedure
regulated in Articles 511b et seq. of the Code of Criminal
Procedure. This serves as a guarantee that the court which must
determine a request for a confiscation order filed by the prosecution
department will only do so after having examined whether, and has
found that, the statutory conditions, including whether there are
indications within the meaning of the second paragraph [of Article
36e] or whether there is plausibility within the meaning of the third
paragraph [of Article 36e], have been met.
-
It follows from the above that the circumstance that the suspect has
been acquitted of specific offences does not automatically constitute
an obstacle for considering those offences, in the framework of the
confiscation procedure, as “similar offences” or
“offences for which a fifth-category fine may be imposed”
as referred to in Article 36e § 2 of the Criminal Code.
3.4. The Supreme Court would add that this is not
incompatible with Article 6 § 2 of the Convention since the
procedure under Article 511b et seq. of the Code of Criminal
Procedure provides the person concerned with the opportunity to
defend himself, including the possibility to argue that insufficient
indications exist that the similar offence or similar offences for
which a fifth-category fine may be imposed, as meant in Article 36e §
2 of the Criminal Code, has/have been committed by [him], or that it
is not plausible that the other punishable offences, within the
meaning of Article 36e § 3 of the Criminal Code, have
resulted in the illegal obtaining of advantage by [him], and why this
is so. The fact that the procedure following a ... [request for a
confiscation order] must be regarded as a separate part or a
continuation of a same [set of] criminal prosecution [proceedings]
that can lead to conviction and sentence (see Hoge Raad, 5
December 1995; NJ 1996; no. 411) does not necessitate any different
finding.
3.5. Given that it has not been argued, nor is it
apparent, that the opportunity referred to in [the above paragraph]
3.4. has not been provided in the instant case, the decision of the
Court of Appeal does not disclose an incorrect interpretation of the
law. In view of the events of the appeal hearing, as recorded, that
decision has been sufficiently reasoned.”
This
decision was published in the Netherlands Law Reports 2003, no. 497.
In
2004 the applicant agreed with the Central Judicial Receiving Office
(Centraal Justitiëel Incasso Bureau) that he would pay
EUR 10,000 at once and the remainder in monthly instalments of
EUR 150.
B. Relevant domestic law and practice
Article
36e of the Criminal Code (Wetboek van Strafrecht) provides:
“1. Upon the application of the Public
Prosecutions Department any person who has been convicted of a
criminal offence may be ordered in a separate judicial decision to
pay a sum of money to the state so as to deprive him of illegally
obtained advantage.
2. Such an order may be imposed on a person as referred
to in paragraph 1 who has obtained advantage by means of or from the
proceeds of the criminal offence in question or similar offences or
offences for which a fifth-category fine may be imposed, in
connection with which there exist sufficient indications that they
were committed by him.
3. Upon the application of the Public Prosecutions
Department any person who has been found guilty of an indictable
offence for which a fifth-category fine may be imposed and against
whom, in connection with his being suspected of that offence, a
criminal financial investigation (strafrechtelijk financieel
onderzoek) has been instituted, may be ordered in a separate
judicial decision to pay a sum of money to the state in order to
deprive him of illegally obtained advantage if, having regard to that
investigation, it is likely that other criminal offences have led in
whatever way to the convicted person obtaining illegal advantage.
4. The judge shall determine the amount which the
illegally obtained advantage is estimated to represent. Advantage
shall be taken to include cost savings. The value of goods which the
court deems to form part of the illegally obtained advantage may be
estimated to be its market value at the time the decision is taken or
may be estimated by reference to the yield to be obtained through
public auction if the amount must be recovered. The court may set the
amount to be paid at less than the estimated advantage.
5. The expression 'goods' shall be taken to mean all
objects and property rights.
6. In determining the amount which the illegally
obtained advantage is estimated to represent, legal claims from
disadvantaged third parties awarded by a court shall be deducted.
7. In imposing the order, account shall be taken of
orders to pay a sum of money by way of deprivation of illegally
obtained advantage imposed under previous decisions.”
The
possibility to deprive a person of proceeds of crime was introduced
in 1983 by the Financial Penalties Act (Wet Vermogenssancties).
On 1 March 1993, the Act of 10 December 1992 on the extension of
the possibilities to apply the measure of illegally obtained
advantage and other financial penalties (Wet tot verruiming van de
mogelijkheden tot toepassing van de maatregel van ontneming van
wederrechtelijk verkregen voordeel en andere vermogenssancties)
entered into force. One of the changes brought about by this Act was
that the proceedings on the measure of deprivation of illegally
obtained advantage were disconnected from the substantive criminal
proceedings, among other reasons in order to prevent situations in
which issues concerning illegally obtained advantage would overshadow
and affect the duration of the substantive criminal proceedings.
It
established a specific procedure – separate from the criminal
proceedings taken against a suspect – for imposing a
confiscation order under Article 36e of the Criminal Code. This
specific procedure is set out in Articles 511b - 511i of the Code of
Criminal Procedure (Wetboek van Strafvordering). The
legislature's choice in setting it out thus was to demonstrate that
it concerned a continuation of the criminal prosecution of the
convicted person, the purpose being to determine the sanction to be
imposed (Kamerstukken (Parliamentary Documents) II, 1989/90
session, 21,504 no. 3, p. 14). The confiscation order procedure
is not designed or intended for the determination of a criminal
charge or a criminal penalty, but for the detection of illegally
obtained proceeds, to determine the pecuniary value thereof and, by
way of a judicial confiscation order, to deprive the beneficiary of
these proceeds. The aim pursued by the possibility of imposing
confiscation orders is twofold; in the first place to remedy an
unlawful situation and, secondly, to bring about a general
crime preventive effect by rendering crime unattractive on
account of an increased risk that proceeds of crime will be
confiscated.
Pursuant
to Article 511b § 1 of the Code of Criminal Procedure, a request
for a confiscation order under Article 36e of the Criminal Code must
be filed by the public prosecutor with the Regional Court as soon as
possible and not later than two years after a conviction has been
handed down in the substantive criminal proceedings by the first
instance trial court. It is not required that, when filing such a
request, the conviction has obtained the force of res iudicata.
Article
311 § 1 of the Code of Criminal Procedure obliges the public
prosecutor to indicate no later than when delivering the closing
speech (requisitoir) before the first-instance trial court in
the substantive criminal proceedings whether the prosecution intends
to seek a confiscation order in case of a conviction. The purpose of
this obligation is to prevent a situation that a convicted person is
confronted, at the latest two years after his conviction by a first
instance court, with a request for a confiscation order, and to
express that a confiscation order procedure does not constitute a
fresh, second prosecution based on the same facts but is to be
understood as a separate part of the earlier substantive criminal
proceedings and that the prosecution does not stop after the end of
the substantive criminal proceedings but is pursued in the
confiscation order procedure.
The notion of “similar offence or offences”
under Article 36e § 2 of the Criminal Code relates to offences
of a similar nature as those having formed the object of the criminal
proceedings against the accused, such as for instance drugs offences,
property offences and offences involving forgery and fraud.
The
rules of evidence that apply in criminal proceedings, as set out in
Articles 338-344a of the Code of Criminal Procedure, are not
applicable to confiscation order procedure. In that procedure it is
for the public prosecutor to establish a prima facie case that
there are sufficient indications that the person concerned has
committed one or more similar offences within the meaning of Article
36e § 2 of the Criminal Code having generated illegally obtained
advantage. It is for the person concerned to rebut the prosecutor's
case. The judge will decide the case on the basis of a balancing of
probabilities, comparable to the standard of proof applicable in
civil proceedings.
The
fact that the rules of evidence applicable in criminal proceedings do
not apply to the confiscation order procedure entails that – if
in criminal proceedings an accused has been partly convicted and
partly acquitted of the charges brought against him – in
subsequent confiscation order proceedings the judge may impose a
confiscation order against the person concerned which is not only
based on the offence(s) of which he has been convicted, but also on
the similar offence(s) of which he has been acquitted but in respect
of which the judge is satisfied, on a balance of probabilities, that
there exist sufficient indications that he has nonetheless committed
them.
Pursuant
to Article 511f of the Code of Criminal Procedure, the judge can
derive the assessment of the actual amount of illegally obtained
advantage under Article 36e of the Criminal Code only from the
contents of “lawful means of evidence” (wettige
bewijsmiddelen). Article 339 of the Code of Criminal Procedure
defines “lawful means of evidence” as the personal
observations of the judge, statements of the accused, statements of a
witness, statements of an expert, and written materials (such as, for
instance, judicial decisions and formal minutes and records).
However, unlike the requirement in criminal proceedings that a
conviction can only be based on evidence that is corroborated by
other evidence, the assessment of the amount of illegally obtained
advantage in confiscation order proceedings can be based on only one
evidentiary item, such as for instance a formal record containing the
statement of the person concerned.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The
applicant complained that the confiscation order imposed on him
infringed his right to be presumed innocent under Article 6 § 2
of the Convention since it was based on a judicial finding that he
had derived advantage from offences of which he had been acquitted in
the substantive criminal proceedings that had been brought against
him.
Article
6 § 2 of the Convention provides as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
The
Government denied that there had been a breach of this provision.
A. Admissibility
The application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Argument before the Court
Asked
to comment as to whether there had been a violation of Article 6 §
2 in that the confiscation order was, for the most part, imposed on
the applicant not following a property analysis indicating that he
was in possession of assets of untraceable or unexplainable origin
but on an assessment of the likely proceeds of “similar
offences” of which he had been acquitted, the Government
pointed out that the said confiscation order was based not on Article
36e § 3 of the Criminal Code but on Article 36e §§ 1
and 2. A property analysis had therefore not been required under
domestic law.
The
proceeds covered by the confiscation order had been calculated for
each unlawful transaction individually. The applicant had thus had
the possibility to explain, in relation to each transaction, that it
was implausible that he had been involved in the offences concerned.
The
measure in question was not a punitive one; its purpose was not to
determine guilt but to recreate the status quo ante after
criminal offences had been committed. Accordingly the criteria for it
to be applied were less strict than those applicable to criminal
proceedings in the strict sense of that expression.
Even
if the applicant had had to answer any “criminal charge”
in connection with the confiscation proceedings, he had had the
benefit of the guarantees of Article 6 § 2. In particular, it
could not be said that the burden of proof had shifted from the
prosecution to the defence.
The
case was similar, in its essentials, to Van Offeren
v. The Netherlands (dec.), no. 19581/04, 5 July 2005.
In both cases there had been confiscation proceedings following an
acquittal; in neither case had the confiscation proceedings involved
any determination of guilt; the difference with the present case lay
solely in the method followed to estimate the benefits unlawfully
enjoyed.
The
applicant pointed to the finding of the 's-Hertogenbosch Court of
Appeal that “sufficient indications” existed that the
applicant had committed the crimes concerned. This, he argued,
constituted a determination of his guilt incompatible with Article 6
§ 2 given that he had been acquitted of precisely those crimes.
Moreover,
there had been no comparative analysis of the applicant's assets over
time, no assets of untraceable or unknown origin having been found in
his possession.
Finally,
the applicant noted that although his co-accused were all convicted
of one or more of the offences with which he himself was charged, no
confiscation orders had been sought in relation to the offences of
which they had been acquitted.
2. The Court's assessment
The
Court reiterates that the presumption of innocence, guaranteed by
Article 6 § 2, will be violated if a judicial decision or a
statement by a public official concerning a person charged with a
criminal offence reflects an opinion that he is guilty before he has
been proved guilty according to law (see Deweer v. Belgium,
judgment of 27 February 1980, Series A no. 35, § 56; and
Minelli v. Switzerland, judgment of 25 March 1983, Series A
no. 62, § 37). Furthermore, the scope of Article 6 §
2 is not limited to criminal proceedings that are pending (see
Allenet de Ribemont v. France, judgment of 10 February 1995,
Series A no. 308, § 35).
In
certain instances, the Court has also found this provision applicable
to judicial decisions taken following an acquittal (see Sekanina
v. Austria, judgment of 25 August 1993, Series A no. 266-A,
§ 22; Asan Rushiti v. Austria, no. 28389/95, §
27, 21 March 2000; and Lamanna v. Austria, no. 28923/95,
10 July 2001). The latter judgments concerned proceedings relating to
such matters as an accused's obligation to bear court costs and
prosecution expenses, a claim for reimbursement of his necessary
costs, or compensation for detention on remand, and which were found
to constitute a consequence and the concomitant of the substantive
criminal proceedings.
However,
whilst it is clear that Article 6 § 2 governs criminal
proceedings in their entirety, and not solely the examination of the
merits of the charge, the right to be presumed innocent under Article
6 § 2 arises only in connection with the particular offence
“charged”. Once an accused has properly been proved
guilty of that offence, Article 6 § 2 can have no application in
relation to allegations made about the accused's character and
conduct as part of the sentencing process, unless such accusations
are of such a nature and degree as to amount to the bringing of a new
“charge” within the autonomous Convention meaning
referred to in paragraph 32 above (Phillips v. the United Kingdom,
no. 41087/98, § 35, ECHR 2001 VII).
The
Court has in a number of cases been prepared to consider confiscation
proceedings following on from a conviction as part of the sentencing
process and therefore beyond the scope of Article 6 § 2 (see, in
particular, Phillips, cited above, § 34; Van Offeren
v. the Netherlands (dec.), no. 19581/04, 5 July 2005). The
features which these cases had in common are that the applicant was
convicted of drugs offences; that the applicant continued to be
suspected of additional drugs offences; that the applicant
demonstrably held assets whose provenance could not be established;
that these assets were reasonably presumed to have been obtained
through illegal activity; and that the applicant had failed to
provide a satisfactory alternative explanation.
The
present case has additional features which distinguish it from
Phillips and Van Offeren.
Firstly,
the Court of Appeal found that the applicant had obtained unlawful
benefits from the crimes in question although the applicant in the
present case was never shown to hold any assets for whose provenance
he could not give an adequate explanation. The Court of Appeal
reached this finding by accepting a conjectural extrapolation based
on a mixture of fact and estimate contained in a police report.
The
Court considers that “confiscation” following on from a
conviction – or, to use the same expression as the Netherlands
Criminal Code, “deprivation of illegally obtained advantage”
– is a measure (maatregel) inappropriate to assets which
are not known to have been in the possession of the person affected,
the more so if the measure concerned relates to a criminal act of
which the person affected has not actually been found guilty. If it
is not found beyond a reasonable doubt that the person affected has
actually committed the crime, and if it cannot be established as fact
that any advantage, illegal or otherwise, was actually obtained, such
a measure can only be based on a presumption of guilt. This can
hardly be considered compatible with Article 6 § 2 (compare,
mutatis mutandis, Salabiaku v. France, judgment of
7 October 1988, Series A no. 141 A, pp. 15-16, § 28).
Secondly,
unlike in the Phillips and Van Offeren cases, the
impugned order related to the very crimes of which the applicant had
in fact been acquitted.
In
the Asan Rushiti judgment (cited above, § 31), the Court
emphasised that Article 6 § 2 embodies a general rule that,
following a final acquittal, even the voicing of suspicions regarding
an accused's innocence is no longer admissible.
The
Court of Appeal's finding, however, goes further than the voicing
of mere suspicions. It amounts to a determination of the applicant's
guilt without the applicant having been “found guilty according
to law” (compare Baars v. the Netherlands, no. 44320/98,
§ 31, 28 October 2003).
There
has accordingly been a violation of Article 6 § 2.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
As
regards pecuniary damage, the applicant claimed his release from the
confiscation order. By this he meant that the sums which he had paid
under the confiscation order should be repaid to him in so far as
they exceeded EUR 6,347.93 – the financial advantage yielded by
the crimes of which he was properly found guilty – and the
obligation to pay the remainder should be lifted. In the alternative,
he claimed the corresponding sums of money.
The
applicant claimed EUR 10,000 in respect of non-pecuniary damage. The
obligation to pay instalments under the confiscation order had made
it very difficult for him to start a new life and he and his family
had suffered as a result.
The
Government contested these claims.
The
Court agrees that the applicant is entitled to reclaim the amount of
the confiscation order in so far as it has been paid and relates to
crimes of which he was acquitted. However, since it appears that the
applicant has been paying in instalments and that part of the total
sum remains unpaid, the Court is not in a position to calculate a
precise figure.
B. Costs and expenses
The
applicant claimed a total of EUR 7,497 including value-added tax
invoiced by his lawyer Mr Lina, who had assisted him in the domestic
proceedings and who had acted in an advisory capacity in the
proceedings before the Court. In addition, he claimed EUR 6,935.72
including value-added tax invoiced by his lawyer Ms Spronken, his
representative before the Court.
The
Government considered these claims unjustified. They observed that
the applicant had had the benefit of legal aid in the domestic
proceedings and in the proceedings before the Court.
C. The Court's decision
In
the circumstances of the case the Court considers that the question
of the application of Article 41 is not ready for decision. It is
therefore necessary to reserve the matter in its entirety, due regard
being had to the possibility of an agreement between the respondent
Government and the applicant (Rule 75 §§ 1 and 4 of the
Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of
Article 6 § 2 of the Convention;
Holds that the question of the application of
Article 41 of the Convention is not ready for decision;
accordingly,
(a) reserves
the said question;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 1 March 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
