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BOK v. THE NETHERLANDS - 45482/06 [2011] ECHR 54 (18 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/54.html
Cite as:
[2011] ECHR 54
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THIRD
SECTION
CASE OF
BOK v. THE NETHERLANDS
(Application
no. 45482/06)
JUDGMENT
STRASBOURG
18
January 2011
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 Bok v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 45482/06) 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”) by a Netherlands national, Mr
Johan Bok (“the applicant”), on 1 November 2006.
The
applicant was represented initially by Mr L.C. van Walree and later
by Ms I.N. Weski, both at relevant times lawyers practising in
Rotterdam. The Netherlands Government (“the Government”)
were represented by their Agent, Mr R.A.A. Böcker of the
Ministry for Foreign Affairs.
The
applicant alleged in particular that he had been a victim of a
violation of Article 6 § 2 of the Convention in that, in civil
proceedings which he had brought as plaintiff, he had been required
to prove his innocence of a crime of which he had been previously
acquitted.
On
9 September 2008 the Chamber decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(former Article 29 § 3 of the Convention).
The
Government filed written observations (Rule 54 § 2 (b) of the
Rules of Court, as in force at the time) on the admissibility and
merits. No observations were received from the applicant within the
time-limit set for that purpose (Rule 38 § 1, as in force at the
time). However, the applicant requested the Court to continue the
proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings and subsequent compensation
procedure
In
1994 – in the context of a much wider criminal investigation
involving many suspects – a preliminary judicial investigation
(gerechtelijk vooronderzoek) was opened against the applicant,
who was suspected of participation in a criminal organisation. On 6
March 1995 the investigating judge (rechter-commissaris) of
the Middelburg Regional Court (rechtbank) authorised the
Middelburg public prosecutor to issue a garnishee order (conservatoir
beslag) against the applicant in the context of this
investigation, the scope of which had been extended to offences under
the Opium Act (Opiumwet). Also in this context, a house in
Rotterdam owned by the applicant's daughter was searched on 21 March
1995, during which the front door, the alarm installation and bedroom
furniture were damaged. This search took place under the direction of
the Rotterdam investigating judge and on the basis of an
authorisation issued by the Middelburg Regional Court. A number of
objects found during this search were seized under the garnishee
order, including two cars: a Jeep and a Mercedes. The Jeep was
returned to the lease company that owned it on 28 June 1995. The
applicant was charged with various offences under the Opium Act and
the Arms and Ammunition Act (Wet Wapens en Munitie).
By
judgment of 5 June 1997, the Middelburg Regional Court convicted the
applicant of various charges brought against him and sentenced him to
eighteen months' imprisonment and payment of a fine of 100,000
Netherlands guilders (“NLG”). The applicant lodged an
appeal.
The
Mercedes car seized on 21 March 1995 was sold at a public auction on
11 July 1997.
On
9 February 1998, the Court of Appeal (gerechtshof) of The
Hague accepted the appeal filed by the applicant, quashed the
judgment of 5 June 1997 and acquitted the applicant of all charges,
finding that they had not been lawfully and convincingly proven (niet
wettig en overtuigend bewezen).
On
an unspecified date, the applicant lodged a claim with the Court of
Appeal of The Hague under Article 591a of the Code of Criminal
Procedure (Wetboek van Strafvordering), seeking the
reimbursement of an amount of more than NLG 200,000 for costs and
expenses incurred by him in the course of the criminal proceedings.
On
29 June 1998 the Court of Appeal of The Hague awarded the applicant
NLG 100,000 for costs and expenses incurred, and rejected his claim
under Article 591a for the remainder. No further appeal lay against
this decision.
On
3 March 1999, the proceeds of the sale of the Mercedes car plus
accrued statutory interest were paid to the applicant.
B. The civil proceedings
On
13 July 1999, considering that the criminal proceedings taken against
him had not only entailed the incurring of legal costs and expenses
but had also caused him and his daughter pecuniary and non-pecuniary
damage, the applicant and his daughter brought civil proceedings
against the Netherlands State before the Regional Court of The Hague.
Alleging a wrongful act (onrechtmatige daad) within the
meaning of Article 6:162 of the Civil Code (Burgerlijk Wetboek),
the applicant and his daughter claimed that a body for whose acts the
State was liable had acted in a wrongful manner towards them by
having brought criminal proceedings against the applicant, and by
using criminal investigation tools (search and seizure) on the basis
of a suspicion that had been unfounded from the outset.
The
applicant claimed compensation in the amount of NLG 1,500,000
for non-pecuniary damage and NLG 475,055.30 for pecuniary damage
(loss of profits, extra accountants' and financing costs, costs
incurred in relation to the two cars seized). The applicant's
daughter claimed compensation of NLG 2,000 for non-pecuniary damage
and NLG 7,760 for pecuniary damage caused to her house and
furniture in the course of the search of 21 March 1995.
In
its judgment of 11 July 2001, the Regional Court rejected the
applicant's claims. It considered that, according to the relevant
case-law under Article 6:162 of the Civil Code, the institution of
criminal proceedings or use of criminal investigation tools could
only be regarded as wrongful when such proceedings had been brought
or such tools used in breach of the law or with disregard of
fundamental requirements (in strijd met de wet dan wel met
verontachtzaming van fundamentele vereisten), or where it
appeared retrospectively from the criminal investigation –
either from the final decision or otherwise – that the
suspicion on the basis of which the criminal proceedings had been
brought or the criminal investigation tool used had been unjustified
(dat de verdenking ten onrechte heeft bestaan). It held that
the first situation did not arise in the applicant's case as, during
the preliminary judicial investigation against the applicant, the
investigating judges of Middelburg and Rotterdam and the Middelburg
Regional Court had given an affirmative answer to the question
whether there was a reasonable suspicion against the applicant and
that consequently it had to be assumed that a reasonable suspicion
had existed at the time. Furthermore, in its judgment of 9 February
1998, the Court of Appeal had found that the criminal investigation
methods used in the applicant's case had not been illicit. The
Regional Court found that the second situation did not arise in the
applicant's case either, as it did not follow from the applicant's
acquittal or from the contents of the criminal case-file as made
available to the court that the applicant had not carried out the
acts of which he had been suspected. Consequently, and absent an
automatic right to compensation for lawful acts on the part of the
State in the context of the criminal investigation against him, the
only possibility for the applicant to obtain compensation in
connection with the criminal proceedings brought against him and the
use of criminal investigation methods in this investigation was to
avail himself of the possibilities provided under Articles 89, 90,
591 and 591a of the Code of Criminal Procedure.
As
regards the applicant's daughter, the Regional Court found no
indication that there had ever been any suspicion of her involvement
in the facts on which the charges brought against the applicant were
based. Consequently, it found that the damage suffered by her –
caused by criminal investigation methods directed against her father
– should not be borne by her. On the basis of the elements
before it, the Regional Court assessed this damage at NLG 3,000 and
ordered the Netherlands State to pay this amount to the applicant's
daughter. It rejected the remainder of both plaintiffs' claims.
On
30 August 2001, the applicant and his daughter lodged an appeal with
the Court of Appeal of The Hague. The Netherlands State lodged a
cross appeal (incidenteel beroep).
In
its judgment of 11 November 2004, the Court of Appeal quashed the
ruling of 11 July 2001 but only in respect of the compensation award
to the applicant's daughter, which it reduced to 750 euros, rejecting
the remainder of her claim for lack of substantiation. It upheld the
impugned ruling for the remainder. Referring to the constant case-law
of the Supreme Court (Hoge Raad), the Court of Appeal held, in
so far as relevant, as follows:
“2.2. ... The Regional Court has
rightly declined to consider the acquittal by the criminal court to
be of decisive importance but instead considered whether the criminal
investigation – the final judgment or otherwise –
demonstrated that [the applicant] had not committed the crimes with
which he had been charged. According to the consistent case-law of
the Supreme Court this does not contravene the presumption of
innocence of Article 6 § 2 of the Convention. The Convention
case-law cited by [the plaintiffs], which does not substantially
differ from the Convention case-law taken into account by the Supreme
Court in its consistent case-law, does not shed any different light
on the case. Nor can allegation that the criminal case file is
inaccessible, if correct, cannot lead to the conclusion that the
cited criterion is applicable.
2.3. To the extent that [the plaintiffs] also
wish to argue that [the applicant] has been prosecuted without
justification because, as they state, no reasonable suspicion of
guilt of a criminal offence in his respect existed, the Court of
Appeal notes the following. For the search and the garnishee order
permission was granted by the Middelburg Regional Court and the
investigating judge, respectively. In the present proceedings it
cannot be successfully argued that these judicial authorities in so
doing took an incorrect decision. That would, after all, imply that
it was for the civil court to examine whether the criminal court had
taken a correct decision and this is incompatible with the closed
system of legal remedies (gesloten system van rechtsmiddelen)
[in the Netherlands legal order]. It has not been argued, nor is it
apparent, that there are special circumstances which might justify
making an exception to this principle.
2.4. The argument that [the applicant] has
been prosecuted without justification because a reasonable suspicion
of guilt was lacking has hardly at all been substantiated by [the
applicant], whereas in the case at hand the onus of proof lies with
[the applicant] and not the State. [The applicant] has only submitted
that the suspicion in this case rested solely on the fact that [the
applicant] knew the co-suspect F. and on some meaningless taps. This
is however insufficient, given the contents of the [items of evidence
set out in the judgment of 7 June 1997 by the Middelburg Regional
Court as submitted by the defendant in response to the plaintiffs'
summons in the present proceedings] which could give rise to the
suspicion that H. and F. were involved in trafficking hashish ... and
that [the applicant] had regular – business – contacts
with F. and H.
2.5. The Court of Appeal agrees with the
Regional Court that the criminal investigation – the final
judgment or otherwise – does not show that [the applicant] was
innocent (onschuldig) of the crimes charged. The Court of
Appeal notes that such a conclusion can only be drawn if the
suspect's innocence is reasonably obvious (de onschuld van de
verdachte met enige evidentie naar voren komt). This is not the
case here given – on the one hand – the items of evidence
[as set out in the judgment of
7 June 1997] and – on the
other – the absence from the criminal case file, in so far as
made available [in the present proceedings], of convincing
disculpatory material (overtuigend ontlastend materiaal).
There is no need to consider, as the Regional Court did, whether the
evidence relied on points in a different direction [i.e. to the
applicant's guilt].”
The
applicant and his daughter lodged an appeal on points of law
(cassatie) – limited to points of law and procedural
conformity – with the Supreme Court. On 16 June 2006, referring
to Article 81 of the Judicial Organisation Act (Wet op de
Rechterlijke Organisatie) and without stating any further
reasons, the Supreme Court rejected this appeal in cassation as not
prompting a determination of legal issues in the interest of legal
unity and legal development.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Criminal Procedure
Article
27 of the Code of Criminal Procedure defines the notion of a suspect
in criminal proceedings. It reads in its relevant part:
“1. Before the start of the
prosecution, the person referred to as the suspect shall be the
person in respect of whom a reasonable suspicion of guilt of a
criminal act flows from facts or circumstances.
2. [After the prosecution has started], the
suspect is the person against whom the prosecution is directed. ...”
If
at the end of the preliminary criminal investigation the public
prosecutor decides to bring the case to trial, the prosecutor will
issue a summons which must be served on the accused. This summons
contains the charges against the accused, which are set out in a very
formal and detailed manner, in conformity with the requirements of
Article 261 of the Code of Criminal Procedure. Pursuant to Articles
348 and 350 of the Code of Criminal Procedure, the trial court is
strictly bound by the wording of the summons and the trial may not be
conducted beyond the facts detailed in the charge(s). Only the public
prosecutor may amend the charge, and then only in certain
circumstances and subject to approval by the trial court (Article 313
of the Code of Criminal Procedure). In reaching its verdict, the
trial court must answer the questions set out in Articles 348 and 350
of the Code of Criminal Procedure and, as to Article 350, must follow
strictly the sequence of these questions as set out in that
provision. In so far as relevant, these Articles read as follows:
Article 348
“The court shall examine – on the basis of
the summons and what has emerged from the trial hearings – the
validity of the summons, its competence to examine the charge and the
admissibility of the prosecution and whether there are reasons to
suspend the prosecution.”
Article 350
“If the examination referred to in Article 348
does not lead to [a ruling declaring the nullity of the summons, the
incompetence of the trial court to deal with the case, the
inadmissibility of the prosecution or the suspension of the
prosecution], the court shall deliberate – on the basis of the
summons and what has emerged from the trial hearings – on the
question whether it has been proven that the accused has committed
the fact [as described in the summons] and, if so, what offence this
fact constitutes according to the law. If found that the fact is
proven and [constituting a] punishable [offence], the court shall
deliberate on the criminal liability (strafbaarheid) and on
the imposition of a punishment or measure.”
Pursuant
to Article 338 of the Code of Criminal Procedure, a finding that it
has been lawfully and convincingly proven (wettig en overtuigend
bewezen) – which is the standard of proof in Netherlands
criminal law – that the accused has committed the fact(s) as
described in the formal charge can only be made by the court when the
latter reached that conviction on the basis of “legal means of
evidence” (wettige bewijsmiddelen). “Legal means
of evidence” are personal observations of the judge, statements
of the accused, statements of witnesses, statements of experts,
authentic minutes and records in proper form and other written
documents (Article 339 § 1 and Articles 340-344a of the Code of
Criminal Procedure). Pursuant to Article 359 §§ 1 and 3 of
the Code of Criminal Procedure, a judgment must enumerate the means
of evidence as well as the pertinent facts and circumstances on which
a conviction is based.
If
the court finds that it has not been legally and convincingly proven
that the accused has committed the fact(s) as set out in the charges,
the judge must pronounce an acquittal (Article 352 § 1 of the
Code of Criminal Procedure). If the court finds such fact(s) proven
but not constitutive of a punishable offence, or if it finds that the
accused cannot be held criminally liable, it shall discharge the
accused from further prosecution (“ontslag van
rechtsvervolging”) (Article 352 of the Code of Criminal
Procedure). Unlike a judgment in which an accused is convicted, no
further reason than “it has not been lawfully and convincingly
proven” is given for an acquittal.
Articles
89, 90, 591 and 591a of the Code of Criminal Procedure provide a
former suspect with the possibility – albeit on limited grounds
– to obtain damages for lawful acts undertaken by the
authorities in the context of criminal proceedings against him or her
after a judicial decision to acquit or to discontinue the criminal
proceedings. In so far as relevant, these Articles read as follows:
Article 89
“1. If a case ends without the
imposition of a punishment or measure, or when such punishment or
measure is imposed but on the basis of a fact for which detention on
remand is not allowed, the court may, at the request of the former
suspect, grant him compensation at the expense of the State for the
damage which he has suffered as a result of police custody, clinical
observation or detention on remand (voorlopige hechtenis).
Such damage may include non-pecuniary damage. ...”
Article 90
“1. Compensation shall be awarded in
each case if and to the extent that the court, taking all
circumstances into account, is of the opinion that there are reasons
in equity to do so.
2. In the determination of the amount, the
personal circumstances (levensomstandigheden) of the former
suspect shall also be taken into account. ...”
Article 591
“1. Compensation shall be paid to the
former suspect or his heirs out of State funds for costs borne by the
former suspect under or pursuant to the provisions of the Act on Fees
in Criminal Cases (Wet tarieven in strafzaken), in so far as
the appropriation of these costs has served the investigation or has
become devoid of purpose by the withdrawal of summonses or legal
remedies by the public prosecution service (openbaar ministerie).
2. The amount of 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 in the court
with jurisdiction as to both facts and law before which, at the time
of its termination, the case was or would have been prosecuted or
else was last prosecuted, by the District Court judge or by the
presiding judge as the case may be. The presiding judge may appoint
one of the judges of the Court of Appeal or the Regional Court who
have dealt with the case to do so. The District Court judge or the
[Regional Court or Court of Appeal] judge shall issue an order of
payment (bevelschrift van tenuitvoerlegging) for the amount of
the compensation. ...”
Article 591a
“1. If the case ends without imposition
of a punishment or measure ..., the former suspect or his heirs shall
be granted compensation out of State funds for his travel and
subsistence expenses incurred for the investigation and the
examination of his case, calculated on the basis of the Act on Fees
in Criminal Cases.
2. If the case ends without imposition of a
punishment or measure ..., the former suspect or his heirs may be
granted compensation out of State funds for the damage which he has
actually suffered through loss of time as a result of the preliminary
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 police custody and detention on remand.
Compensation for such costs may furthermore be granted when a case
ends with the imposition of a punishment or measure on the basis of a
fact for which detention on remand is not allowed. ...
4. Articles 90 and 591, paragraphs 2 to 5,
shall apply by analogy. ...”
B. The Civil Code and the Code of Civil Procedure
Apart
from the above possibility under the Code of Criminal Procedure to
seek damages for lawful acts by the authorities in criminal
proceedings which have ended in an acquittal or discontinuation, it
is also possible for former suspects – as currently there is no
other specific remedy under domestic law – to seek compensation
for a wrongful act, or tort, on the part of public authority
(“onrechtmatige overheidsdaad”) by taking civil
proceedings against the State claiming compensation for damages based
on the argument that the institution of criminal proceedings and/or
the application of one or more coercive measures in the course of
those criminal proceedings constituted a wrongful act within the
meaning of Article 6:162 of the Civil Code. Article 6:162 of the
Civil Code reads as follows:
“1. A person who commits a wrongful act
(onrechtmatige daad) against another which is attributable to
him, must repair the damage suffered by the other in consequence.
2. Except where there is a ground of
justification, the following acts are deemed to be wrongful: the
violation of a right, and an act or omission violating a duty imposed
by law or a rule of unwritten law pertaining to proper social
conduct.
3. A wrongdoer is responsible for the
commission of a wrongful act if it is due to his fault or to a cause
for which he is accountable by law or pursuant to generally accepted
principles (de in het verkeer geldende opvatting).”
Pursuant
to Article 150 of the Code of Civil Procedure (Wetboek van
Burgerlijke Rechtsvordering), the plaintiff claiming damages
under Article 6:162 bears the burden of proof, unless a specific
rule or reasons of equity (redelijkheid en billijkheid) call
for a shift of the burden of proof to the defendant.
Pursuant
to Article 149 § 1 of the Code of Civil Procedure, the judge
mainly plays a passive role in civil proceedings. Apart from facts
and circumstances of common knowledge (Article 149 § 2), a civil
court can solely base its ruling on those facts or rights of which it
was informed or of which it acquired knowledge during the proceedings
in a manner complying with the requirements of the Code of Civil
Procedure. The court must accept as established facts or rights
claimed by one party and which have not or have been insufficiently
disputed by the adversary party, notwithstanding its competence to
request evidence, in so far as acceptance of claims would lead to
legal consequences which are not for the free determination of the
parties.
This
entails that, in proceedings in which a wrongful act is claimed, it
is the plaintiff who must substantiate his or her claim with
sufficient and demonstrable facts. It is not enough merely to state,
for instance, that a criminal prosecution has been unjustly brought
or that a coercive measure in criminal law was unjustly used by the
criminal investigating authorities. Rather, it is up to the defendant
to give a reasoned challenge of the materials adduced by the
plaintiff in substantiation of his or her claim. A mere denial
without any substantiation is insufficient.
Parties
to civil proceedings may submit evidence in any form (Article 151 §
1 of the Code of Civil Procedure) and, although there is no hierarchy
between oral or documentary evidence, certain categories of
documentary evidence (such as authentic deeds and final convicting
judgments delivered after adversarial criminal proceedings) are
compelling evidence as to the veracity of statements set out in such
documents (Articles 160-161 of the Code of Civil Procedure). The
evaluation of all other evidence is left to the discretion of the
court (Article 152 § 2 of the Code of Civil Procedure).
C. The Bill on compensation of damage caused by government
action in criminal proceedings
A
“Bill on compensation of damage caused by government action in
criminal proceedings” (Wetvoorstel Schadecompensatie
Strafvorderlijk Overheidsoptreden) is pending which is intended
to improve the legal position of persons having suffered damages in
consequence of lawful or wrongful government action in the context of
criminal proceedings. This Bill proposes to introduce one specific
and simple procedure for examining such compensation claims filed by
different categories of claimants (not only former suspects but also
non-suspect victims, for instance bystanders hit by a ricocheted
bullet fired by a police officer). The pertaining Explanatory
Memorandum explains the current situation under Netherlands civil law
in respect of former suspects as follows:
“As the law currently stands, a former suspect can
only claim compensation for damages for lawful government action in
criminal proceedings when it concerns 'wrongfulness ex post'.
This means that a former suspect is entitled to compensation when, in
retrospect, the government action is wrongful on the basis of this
suspect's demonstrated innocence (gebleken onschuld). However,
there is only demonstrated innocence when 'it is demonstrated by the
ruling of the criminal court or otherwise by the documents relating
to the criminal procedure that has not ended with a finding that the
charges have been proven (bewezenverklaring) that the suspect
is innocent and that the suspicion on which the action of the police
or justice authorities was based was unfounded' (Supreme Court, 13
October 2006, ... Landelijk Jurisprudentienummer [National
case-law database number, 'LJN'] AV6956).
Where these documents do not demonstrate that the person
concerned was innocent, then it must be assumed – according to
consistent case-law – that the suspicion of the person
concerned complied with the standard laid down in Article 27 [of the
Code of Criminal Procedure], that criminal law measures [taken and]
based on that suspicion were not unlawful and that – for
obtaining compensation of damage – the suspect is to turn to
the possibilities under Articles 89-93, 591 and 591a of the Code of
Criminal Procedure (see, inter alia, Supreme Court 13 October
2006, ... LJN AV6956). This applies also for those cases in which the
accused has been acquitted, because an acquittal does not always mean
that an accused was innocent. In some cases it is no longer possible
to find out during the criminal proceedings what exactly did happen.
For instance because witnesses give conflicting evidence on essential
points and the accused's denial is supported by other statements.
Then it is possible to acquit an accused for lack of evidence while
at the same time it remains unclear whether the accused has committed
the fact [constituting the offence]....”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The
applicant complained under Article 6 § 2 of the Convention that
the reasons stated by the Court of Appeal for rejecting his
compensation claim under Article 6:162 of the Civil Code failed to
respect the presumption of innocence through finding – despite
his acquittal – that the original suspicion weighing against
him had not been dispelled.
Article
6 § 2 of the Convention reads as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
A. Admissibility
1. The Government's preliminary objection
The
Government asked the Court to declare the application inadmissible on
the ground that the applicant could not claim to be a “victim”
of any supposed violation of the Convention. They pointed to the
applicant's acquittal and to the considerable sum of money which he
had received in compensation for any damage which he might have
suffered in the course of the proceedings. In the circumstances, a
claim of victim status could not be based on the mere fact that the
applicant had not subsequently been awarded further compensation by
the civil courts.
As
will be seen below, the applicant does not complain merely that he
was denied further compensation as the Government suggest. Reduced to
their essentials, his complaints are that the denial of further
compensation was based on grounds incompatible with requirements of
fairness and the presumption of innocence enshrined in Article 6 §§
1 and 2. The Government's preliminary objection therefore lacks a
basis in fact and must be dismissed.
2. Conclusion as to admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Government argued that the present case was distinguishable from
earlier cases in which the Court had found a violation on the ground
that a final and unappealable acquittal had been called into
question. An acquittal did not establish innocence, as in the present
case it had not. The failure retrospectively to declare the applicant
innocent could not be equated with an implied or express suspicion of
guilt.
In
fact, the Court of Appeal had avoided expressing itself on the
applicant's guilt or innocence. In stating that the applicant's
innocence did not appear from the acquittal judgment, the Court of
Appeal had not implied a lingering suspicion. It had found, as it
properly could, that the suspicion which had caused the coercive
measures to be ordered had, at the time, been reasonable and that the
acquittal per se was insufficient to justify a different
conclusion.
The Court has frequently held that neither Article 6 §
2 nor any other provision of the Convention gives a person “charged
with a criminal offence” the right to the reimbursement of his
costs or the right to compensation for lawful pre-trial detention
where proceedings taken against him were discontinued or resulted in
an acquittal (see, among many other authorities, Sekanina v.
Austria, judgment of 25 August 1993, Series A no. 266-A, §
25, and Hibbert v. the Netherlands (dec.), no.
30087/97, 26 January 1999).
However,
the Court has been led to find violations of Article 6 § 2
in that the reasons given for refusing monetary compensation
following the termination of criminal proceedings reflected an
opinion that the accused was guilty of a crime, notwithstanding the
absence of any actual conviction (see, as examples concerning the
same respondent Party, Baars v. the Netherlands, no.
44320/98, § 31, 28 October 2003, and Del Latte v. the
Netherlands, no. 44760/98, § 33, 9 November 2004; as
examples of similar findings against a different respondent Party,
see Hammern v. Norway,
no. 30287/96, §
47, 11 February 2003, and O. v. Norway, no. 29327/95,
§ 39, ECHR 2003 II).
The
Court has also, on occasion, found Article 6 § 2 to have been
violated in that a judgment by a civil court awarding damages against
a former defendant in a criminal case contained reasoning
incompatible with the latter's acquittal (Y v. Norway, no.
56568/00, § 46, ECHR 2003 II (extracts); Orr v. Norway,
no. 31283/04, § 53, 15 May 2008).
In contrast, in Ringvold v. Norway, no.
34964/97, § 38, ECHR 2003 II, the Court accepted that
“while exoneration from criminal liability ought to stand in
... compensation proceedings [brought by the victim of the acts at
issue against the former accused], it should not preclude the
establishment of civil liability to pay compensation arising out of
the same facts on the basis of a less strict burden of proof”,
although “[if] the national decision on compensation were to
contain a statement imputing criminal liability to the [former
accused], this would raise an issue falling within the ambit of
Article 6 § 2 of the Convention” (see also Reeves v.
Norway (dec.), no. 4248/02, 8 July 2004).
The
cases of Puig Panella v. Spain, no. 1483/02, 25 April 2006,
and Tendam v. Spain, no. 25720/05, 13 July 2010, concerned
proceedings in the administrative courts brought by applicants
following criminal proceedings that had resulted in the overturning
of a conviction (Puig Panella) and in an acquittal (Tendam),
respectively. In both cases the Court found violations of Article 6 §
2 in that the domestic courts had based their rejection of the
applicant's claims on the finding that the outcome of the criminal
proceedings did not show that the facts charged did not exist, but
merely the absence of sufficient proof to ground a conviction.
The
present case differs from all those mentioned above in that the
applicant was awarded a sum of money towards his costs and expenses
in dedicated proceedings which have not given rise to allegations
that Article 6 § 2 has been violated, the applicant having
chosen to bring additional civil proceedings in an attempt to obtain
further sums.
The
Court finds this latter distinction to be decisive. After all, in
civil proceedings it is normally the plaintiff in a defended action
who bears the burden of proof (affirmanti non neganti
incumbit probatio, enshrined in domestic procedure as
Articles 149 and 150 of the Code of Civil Procedure, see paragraphs
26 and 27 above).
The
applicant based his claim on the premise that any suspicion against
him had been groundless from the outset (see paragraph 13 above). For
his claim to succeed, the applicant was required to prove his
position by any of the means which domestic procedure placed at his
disposal (see paragraphs 18 and 27-29 above).
The
Court cannot find it unreasonable that the applicant was required to
prove, on balance, the truth of his allegation that there had never
been any reason to suspect him in circumstances where he was claiming
damages in this regard. If the Court were to hold otherwise it would
lead to the absurd consequence of obliging the domestic courts to
take the applicant's assertions of wrongdoing on the part of the
state at face value. The domestic courts were satisfied that there
was prima facie evidence upon which the State was entitled to
bring the criminal proceedings against the applicant. He enjoyed the
presumption of innocence and was entitled to the benefit of the doubt
in criminal proceedings. His acquittal was based on the fact that the
evidence of the prosecution was not sufficient to find him guilty
beyond reasonable doubt. His acquittal in criminal proceedings did
not mean that he was dispensed from the obligation of having to prove
his claim for damages brought
in civil proceedings in
accordance with the applicable domestic rules regarding burden of
proof (see paragraphs 43-44 above).
It
must be accepted as a consequence that the domestic civil courts were
required, and therefore entitled, to decide whether the applicant had
properly discharged his burden of proof.
The
Court appreciates that in the present case the use of expressions
stating the lack of any appearance of the applicant's “innocence”
(onschuld) and the absence of “disculpatory material”
(ontlastend materiaal) in paragraph 2.5 of the judgment of the
Court of Appeal was unfortunate and, given the confusion which those
expressions caused, inappropriate. The context is however set by the
preceding paragraph of that judgment, paragraph 2.4, in which the
Court of Appeal elaborated upon the scope of the burden of proof
which the applicant was obliged to bear in making his claim. The
impugned expressions, though unnecessary, were aimed at explaining
what the applicant was obliged to prove and how he had failed so to
do.
In
conclusion, the Court cannot find that the ruling given by the Court
of Appeal in finding against the applicant in the civil proceedings
at issue offended the presumption of innocence
guaranteed to him under Article 6 § 2 of the Convention. There
has therefore not been a violation of that provision.
II. ALLEGED VIOLATION OF
ARTICLE 6 § 1 OF THE CONVENTION
The
applicant also complained that it was incompatible with Article 6
§ 1 of the Convention that, as the burden of proof lay with the
plaintiff, he had to prove his innocence in the civil compensation
proceedings. He lastly complained under Article 6 § 1 of the
Convention that he was denied a fair trial in that the domestic
courts incorrectly failed to appreciate that there had never existed
a proper factual basis for instituting and pursuing criminal
proceedings against him and for applying criminal investigation
methods in these proceedings, which disproportionate measures have
caused him damage.
Article
6 § 1 of the Convention, in its relevant part, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
The
Court will confine itself to referring to its conclusion in paragraph
48 above and the reasoning on which it is based. There is no separate
issue to be considered under Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT
Dismisses unanimously the Government's
preliminary objection;
Declares unanimously the application admissible;
Holds by six votes to one that there has been no
violation of Article 6 § 2 of the Convention;
Holds by six votes to one that it is not
necessary to consider the applicant's complaints under Article 6
§ 1 of the Convention.
Done in English, and notified in writing on 18 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Section Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) concurring opinion of Judge López Guerra;
(b) concurring opinion of Judge Power;
(c) dissenting opinion of Judge Casadevall.
J.C.M.
S.Q.
CONCURRING OPINION OF JUDGE LÓPEZ GUERRA
I
agree with the Chamber's conclusion
concerning the non-violation of article 6 § 2 of the Convention.
I consider, however, that the fact that the applicant had already
been awarded a sum of money towards his costs and expenses is not the
decisive factor (paragraph 43) in this case. In my opinion what
really distinguishes this case from the Puig
Panella and Tendam
cases is that the Court of Appeal's determining reasoning in refusing
the applicant's claims was undoubtedly based on his failure to prove
that there had never been any probable cause for the charges against
him. The Court of Appeal's reasoning stating that the applicant's
final judgment and acquittal did not show that he was innocent is
clearly of a lateral or secondary nature, being an obiter
dictum in the judgment of that Court.
Certainly, as our judgment states, that reasoning was inappropriate.
But I concur with our judgment in that these unnecessary expressions
do not represent a violation of the presumption of innocence.
CONCURRING OPINION OF JUDGE POWER
1. The
presumption of innocence when charged with a criminal offence is a
sacrosanct principle of Convention law but the wording of Article 6 §
2, when taken alone, is open to different interpretations. What does
“Everyone charged” actually mean? Does it mean “Everyone
ever charged – no matter how long ago”? Or does it
mean “Everyone when charged or likely to be charged with a
criminal offence and for as long as such charges are pending”?
Is the presumption of innocence “eternally live”,
attaching to every person at all times regardless of whether one is
actually facing a criminal charge or not? Or is the presumption
something that is “triggered”, that only becomes legally
meaningful when events occur through which a person is, in reality,
facing or likely to be facing a criminal charge which has not, as
yet, been determined? To my mind, these are not only neat
philosophical questions; how they are answered is critical to the
determination of this case.
The
free-standing, post-acquittal “eternally live” model of
interpretation of Article 6 § 2 is appealing and attractive and
there is some support for this model in the case law to date –
at least where a sufficient “link” exists between the
post-acquittal observations of a court and the criminal
responsibility of an accused.
However, without advocating a rigid and unwavering adherence to the
doctrine of “original intent”, common sense and the
overall “fair trial” context within which the presumption
of innocence is articulated within the Convention lead me to the view
that the “events occurring” model of interpretation is
the better one. Based on that interpretation, I voted with the
majority in finding no violation of Article 6 § 2 of
the Convention. The alternative would have established, in my view,
an unreasonable and potentially unlimited extension of the scope of
Article 6 § 2 to civil proceedings.
The
Court confirmed in Allenet de Ribemont v. France that the
presumption of innocence enshrined Article 6 § 2 is one of the
elements of a fair criminal trial that is required by Article 6 §
1.
The principle of presumption of innocence is, above all, a procedural
safeguard in criminal proceedings and it imposes obligations on all
state authorities to ensure that no suggestion is made that an
accused charged with a criminal offence is guilty of that offence
before he has been so found in accordance with law. However, the fact
that every accused person enjoys the presumption of innocence when
charged with a criminal offence does not invalidate the distinction
in legal theory between criminal responsibility and civil liability
arising out of the same events but involving different standards of
proof.
The
Court of Appeal, in acquitting the applicant, found that the charges
against him had not been “convincingly proven”. Such
evidence as was adduced at his criminal trial was insufficient to
establish his guilt beyond reasonable doubt. In effect, that evidence
failed to rebut the presumption of innocence which he enjoyed in
respect of the specific charges and thus, that presumption remained
undisturbed.
The
applicant was entitled under domestic law to institute separate civil
proceedings seeking damages against the State for alleged wrongful
conduct on its part. Essentially, he claimed that the State had no
reasonable grounds for suspecting him of the offences with which he
had, previously, been charged. Once the decision was taken to put the
reasonableness or otherwise of his prosecution in issue it was to be
expected that, in contentious civil litigation, arguments would arise
as to whether or not there had been evidence available for suspecting
him of the offences in question. The civil courts found that evidence
giving rise to reasonable suspicion had been available to the State
and the applicant lost his case.
Where
an allegation of wrongdoing is made in a contentious civil action for
damages it is the right of every defendant thereto to challenge the
allegations made. The Court could not countenance a situation where
every acquitted person who subsequently litigates the reasonableness
or otherwise of his arrest in separate civil proceedings would have
to be awarded damages, failing which a violation of Article 6 §
2 would be found. In civil proceedings, the State, like every other
defendant, is entitled to defend itself against claims made and, in
this case, the State's defence succeeded.
When
the events occurred through which the applicant found himself
“charged with a criminal offence” the sacrosanct
presumption of innocence was triggered. It remained “live”
until the determination of the criminal proceedings when its raison
d'être ceased to exist. To speak of a violation of the
presumption of innocence when a person is not – or is no
longer – facing a criminal charge is to divorce the
principle from its purpose. That is the difficulty I have with the
“eternally active” model of interpretation of Article 6 §
2.
At
the time of the civil proceedings, the applicant was not a person
“charged with a criminal offence”. There existed no
reason for the presumption of innocence to “trigger” and
thus it cannot have been disturbed by the findings of the civil
court. I accept that some of the latter's observations might have
been more elegantly articulated. I do not condone the remarks
concerning the necessity for a suspect's innocence to be “reasonably
obvious” nor the comments concerning the absence of
“disculpatory material” within the criminal file. None of
these observations were necessary for determining the civil action
and it seems to me that the civil courts confused the concept of the
“presumption of innocence” with the concept of “the
existence of reasonable cause”. Unfortunate as this confusion
was, and inelegant as the articulation might have been, I cannot
conclude that these observations resulted in a “finding”
of guilt that violates the presumption of innocence as protected
under Article 6 § 2. The inelegantly articulated comments of the
Court of Appeal did not in any way jeopardize the fairness of the
applicant's criminal trial. The reality is that the applicant was
not, at that point, a person charged with a criminal offence. The
circumstances for which the procedural safeguard was incorporated
into the Convention simply did not exist. It was for this reason that
I found no violation of Article 6 § 2.
DISSENTING OPINION OF JUDGE CASADEVALL
(Translation)
1. I
cannot agree with the majority's approach in this judgment, as it is
my belief that there was a violation of the applicant's right to the
presumption of innocence, for the reasons given below.
It
has been the Court's well-established case-law, since the Minelli
judgment,
that the presumption of innocence will be violated if, without the
accused having previously been proved guilty according to law, a
judicial decision concerning him reflects an opinion that he is
guilty, even in the absence of any formal finding; it suffices that
there is some reasoning suggesting that the court regards the accused
as guilty. The scope of the presumption of innocence protected by
Article 6 § 2 “is thus not confined to criminal
proceedings which are pending but also encompasses judicial decisions
pronounced after proceedings have been terminated”,
be they decisions of civil courts or of administrative courts. The
operative part of a judgment pronouncing an acquittal must be
respected by any authority referring directly or indirectly to the
criminal responsibility of the interested party.
I
agree with the judgment (paragraph 37) that neither Article 6 §
2 nor any other provision of the Convention gives a person “charged
with a criminal offence” the right to the reimbursement of his
costs or the right to compensation for lawful pre-trial detention,
and that refusal by a domestic court to award an applicant such
reimbursement or compensation does not in itself violate the
presumption of innocence. Most European legislations which provide
for the payment of such compensation subject it to certain conditions
concerning the conduct of the interested party, either before or
during the proceedings, or leave it to the discretion of the court,
which, again, is not contrary to the provisions of the Convention. I
also agree with the conclusion expressed in paragraph 38 of the
judgment. The problem is therefore not the refusal, in itself, to
award monetary compensation, but the reasoning behind the refusal or
the language used in the arguments for the decision.
In
Sekanina v. Austria the Linz Court of Appeal concluded:
“The jury took the view that the suspicion was not sufficient
to reach a guilty verdict; there was, however, no question of that
suspicion's being dispelled.” The Court found that such
affirmations – not corroborated by the judgment acquitting the
applicant or by the record of the jury's deliberations – left
open a doubt both as to the applicant's innocence and as to the
correctness of the Assize Court's verdict, a doubt which was
incompatible with the presumption of innocence, and it accordingly
found a violation.
In
Puig Panella v. Spain, the Ministry of Justice rejected the
applicant's claim for damages, arguing that he “... had not
really proved that he did not take part in the offences with which he
was charged (...) and such compensation could be awarded only in the
event of absolute certainty as regards the innocence of the person
remanded in custody (...)”. The Court held that that reasoning,
subsequently upheld by the relevant domestic courts, was incompatible
with the presumption of innocence, and found a violation.
More
recently, in Tendam v. Spain, in rejecting the applicant's
claims the Ministry of Justice again argued that he had been
acquitted on appeal “not because of the objective or subjective
inexistence of the offending act” but because of the lack of
sufficient proof on which to base a conviction, and that “the
applicant's involvement in the offence had not been sufficiently
established”. The Court reiterated that the domestic courts, in
upholding that reasoning, had failed to remedy the problem. It
accordingly found a violation.
Even
if the circumstances in each of these cases differ, they all have one
thing in common which led to the finding of a violation: the wording
used by the domestic authorities to defend their decisions not to
award the applicants compensation.
In
the present case the Court of Appeal (paragraph 18) states that it
“agrees with the Regional Court that the criminal investigation
– the final judgement or otherwise – does not show that
(the applicant) was innocent (onschuldig) of the crimes
charged. The Court of Appeal notes that such a conclusion can only be
drawn if the suspect's innocence is reasonably obvious. This is not
the case here (...)”. I find it very difficult to see any
distinction between these remarks and those referred to in the
judgments mentioned above.
The
majority distinguishes this case from the Puig-Panella and
Tendam cases because the applicant, in previous proceedings,
was awarded a sum of money towards his costs and expenses, adding
that “The Court finds this latter distinction to be decisive”,
and further stating that in civil proceedings it is normally the
plaintiff in a defended action who bears the burden of proof
(paragraphs 42 and 43). Clearly I am not disputing that principle of
civil law. But I find the distinction artificial. The fact of having
received costs and expenses has nothing to do with a claim for
compensation for alleged non-pecuniary damage. The problem is not the
rejection of the applicant's claim for damages (the civil court might
well have its reasons for that decision), but rather, as in the cases
cited above, the reasoning given by the Court of Appeal.
The
majority confines itself to acknowledging that “the use of
expressions stating the lack of any appearance of the applicant's
innocence and the absence of disculpatory material (...) was
unfortunate and, given the confusion which those expressions caused,
inappropriate”, but it did not draw what I consider were the
necessary conclusions in this case. Furthermore, the phrase “This
applies also for those cases in which the accused has been acquitted,
because an acquittal does not always mean that an accused was
innocent” in the Explanatory Memorandum to the “Bill
on compensation” (paragraph 30) triggers certain misgivings
about the future. This statement strikes me as being in flagrant
contradiction with the letter and the spirit of Article 6 § 2 of
the Convention.
