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You are here: BAILII >> Databases >> European Court of Human Rights >> MASSON AND VAN ZON v. THE NETHERLANDS - 15346/89;15379/89 [1995] ECHR 32 (28 September 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/32.html Cite as: (1996) 22 EHRR 491, 22 EHRR 491, [1995] ECHR 32 |
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In the case of Masson and Van Zon v. the Netherlands (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Macdonald,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr A.N. Loizou,
Mr F. Bigi,
Mr B. Repik,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 28 April and 2 September 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 30/1994/477/558-559. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The third number indicates the case's
position on the list of cases referred to the Court since its creation
and the last two numbers indicate its position on the list of the
corresponding originating applications to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 9 September 1994, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in applications
(nos. 15346/89 and 15379/89) against the Kingdom of the Netherlands
lodged with the Commission under Article 25 (art. 25) by two
Netherlands nationals, Mr Adrianus Johannes Marie Masson and
Mr Jacobus van Zon, on 8 and 2 June 1989 respectively.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the Netherlands recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Articles 6 para. 1 and 13 (art. 6-1, art. 13) of the
Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicants stated that they wished
to take part in the proceedings and designated the lawyers who would
represent them (Rule 30).
Mr Masson died on 13 December 1994. His heirs expressed the wish
that the proceedings should be continued but declined to take further
part.
For reasons of convenience Mr Masson will continue to be referred
to as the applicant in so far as this judgment concerns him.
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 24 September 1994,
in the presence of the Registrar, the President drew by lot the names
of the other seven members, namely Mr R. Macdonald, Mrs E. Palm,
Mr I. Foighel, Mr A.N. Loizou, Mr F. Bigi, Mr B. Repik and
Mr P. Jambrek (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Netherlands
Government ("the Government"), the applicants' lawyers and the Delegate
of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence, the
Registrar received the memorial of the applicant Mr van Zon on
1 February 1995 and the Government's memorial on 3 February. The
Delegate of the Commission did not submit any observations in writing.
5. On 7 February 1995 the Commission produced certain documents from
the file on the proceedings before it, as requested by the Registrar
on the President's instructions.
6. On 15 March 1995 the Registrar received a document setting out
the claims under Article 50 (art. 50) of the heirs of Mr Masson.
7. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 April 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr K. de Vey Mestdagh, Ministry of Foreign Affairs, Agent,
Mr J.L. de Wijkerslooth de Weerdesteijn,
Landsadvocaat, Counsel;
(b) for the Commission
Mr B. Marxer, Delegate;
(c) for the applicant Mr van Zon
Mr A.F.M. Duynstee, advocaat en procureur,
Mr J.A.D. de Graaf, advocaat en procureur, Counsel.
The Court heard addresses by Mr Marxer, Mr Duynstee and
Mr de Wijkerslooth de Weerdesteijn.
AS TO THE FACTS
I. Particular circumstances of the case
A. The "ABP Affair"
8. In 1983 a so-called "Black Book" (zwartboek) containing
allegations of irregularities with regard to the financial dealings of
the Civil Service Pension Fund (Algemeen Burgerlijk Pensioenfonds,
"ABP") was published anonymously.
9. Following a criminal investigation, the two applicants were
charged with forgery and corruption. At the time, Mr Masson was the
Investments Manager of ABP. Mr van Zon was a businessman with
interests in real estate development.
B. The criminal proceedings
1. Mr Masson
(a) Restrictions on liberty
10. On 10 May 1984 Mr Masson was arrested and taken into police
custody (verzekering). He was subsequently placed in detention on
remand (voorlopige hechtenis).
By order of 21 February 1985 (effective on 22 February) the
review chamber (raadkamer) of the Regional Court
(arrondissementsrechtbank) of Maastricht suspended the detention on
remand, allowing Mr Masson to return to his home on condition, inter
alia, that he surrender his passport and report to the local police
every day. In addition, he was not allowed to communicate in any way
with his co-accused, Mr van Zon. The obligation to report daily to the
police was lifted by the review chamber on 26 March 1986.
(b) Proceedings in the domestic courts up to acquittal
11. Towards the end of July 1984 the public prosecutor (officier van
justitie) summonsed Mr Masson to appear before the Maastricht Regional
Court on 3 August 1984 on four counts of forgery, being an accessory
to fraudulent bankruptcy, corruption and swindling.
Mr Masson filed an objection (bezwaarschrift) on 26 July 1984,
as a result of which the summons lapsed (section 262 of the Code of
Criminal Procedure ("CCP") as it then read). The objection was
dismissed by the Regional Court on 14 September 1984.
On appeal the 's-Hertogenbosch Court of Appeal decided on
7 November 1984 to clear Mr Masson of one charge, that of being an
accessory to fraudulent bankruptcy, but found that there was a
prima-facie case against him as regards the remainder. The decision
of the Court of Appeal was upheld by the Supreme Court (Hoge Raad) on
26 March 1985.
12. Mr Masson was again summonsed to appear before the Maastricht
Regional Court on 20 May 1985, this time on the charges allowed by the
Court of Appeal on 7 November 1984.
13. On 21 May 1987, after various adjournments and hearings, the
Regional Court acquitted Mr Masson of one of the charges but convicted
him of the remainder. It sentenced him to one year's imprisonment and
ordered him to pay to the State 108,000 Netherlands guilders (NLG),
that being the court's estimate of the benefit derived by Mr Masson
from the crimes of which he had been found guilty.
14. Both Mr Masson and the public prosecutor appealed against this
judgment to the 's-Hertogenbosch Court of Appeal. On 7 June 1988 the
Court of Appeal acquitted Mr Masson on all charges.
2. Mr van Zon
(a) Restrictions on liberty
15. Mr van Zon was arrested on 11 May 1984. Like Mr Masson, he was
taken into police custody and subsequently detained on remand. He
remained in detention until 29 January 1985.
On 29 January 1985 his detention on remand was suspended on
condition that he report every week to the investigating judge and
provide a surety of NLG 350,000. The order to report to the
investigating judge was lifted on 14 February 1986. On
30 September 1987, at Mr van Zon's request, the 's-Hertogenbosch Court
of Appeal rescinded the order of detention on remand altogether and
ordered the return of the surety.
(b) Proceedings in the domestic courts up to acquittal
16. Mr van Zon was summonsed to appear on 3 August 1984 before the
Regional Court of Maastricht.
17. On 24 June 1987, after various adjournments and hearings, the
Regional Court convicted him on a number of counts of fraud, corruption
and forgery and sentenced him to one year's imprisonment.
18. Both the public prosecutor and Mr van Zon appealed against the
Regional Court's judgment to the 's-Hertogenbosch Court of Appeal.
On 7 June 1988 the Court of Appeal acquitted Mr van Zon on all
charges.
C. Damage sustained, legal costs incurred and compensation
proceedings
1. Mr Masson
19. Mr Masson was suspended from his duties on 26 August 1983 by the
Minister for Home Affairs (Minister van binnenlandse zaken) following
the opening of the criminal investigation. On 24 December 1984 the
Minister decided to withhold one-third of his salary for a period of
six weeks and to stop his salary entirely thereafter. This apparently
left him without an income from public employment from 5 February 1985
until 1 September 1987, when he became entitled to a pension.
In September 1988, following the acquittal, the Minister for Home
Affairs paid Mr Masson half the amount which had been stopped.
20. Mr Masson's costs of legal assistance in the national proceedings
totalled NLG 804,090.99. Of this sum NLG 787,243.56 remained unpaid.
2. Mr van Zon
21. Mr van Zon had to pay his counsel NLG 610,049.61 for their
assistance in the national proceedings. Other expenses included the
cost of the banker's guarantee which served as surety in lieu of
detention.
3. Proceedings brought
22. On 5 and 6 September 1988 respectively, Mr van Zon and Mr Masson
filed requests to the Court of Appeal, under section 591a CCP for
reimbursement by the State of their legal costs and of travel and
subsistence expenses incurred in connection with the proceedings (see
paragraph 28 below) and under section 89 for financial compensation for
the restrictions on their liberty (see paragraph 27 below).
23. On 9 December 1988 the review chamber of the Court of Appeal
rejected both applicants' claims under section 89 on the ground that
there were no reasons in equity to award the applicants compensation.
The review chamber, which was composed of three judges, included
two (one of them the presiding judge) who had participated in the
appeal hearing; the third member of the original chamber had in the
meantime left the 's-Hertogenbosch Court of Appeal.
24. In decisions of the same date the presiding judge of the review
chamber awarded NLG 5,853.55 to Mr Masson and NLG 3,559.80 to
Mr van Zon by way of reimbursement for travel and subsistence expenses
incurred in connection with the hearings of the courts and in respect
of the costs of defence witnesses, but rejected the remainder of their
claims entirely. These decisions explicitly referred to the decisions
of the review chamber mentioned in the previous paragraph, including
the reasoning on which they were based.
25. Both applicants brought proceedings against the Netherlands State
before the Regional Court of The Hague, Mr van Zon on 27 May 1993 and
Mr Masson on 6 June 1993. Alleging a wrongful act in civil law
(onrechtmatige daad), they claimed compensation for the damage caused
to them by the detention on remand and full reimbursement of their
legal costs. It appears that these proceedings are still pending.
II. Relevant domestic law and practice
A. The Code of Criminal Procedure
26. The relevant provisions of the Code of Criminal Procedure were
amended by the Act of 8 November 1993, Staatsblad (Official Gazette)
1993, no. 591, which entered into force on 1 January 1994 (see
paragraph 31 below).
1. Relevant provisions of the Code of Criminal Procedure as
they read in 1988
27. Sections 89 and 90 CCP, in so far as relevant, provided:
Section 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 or detention on
remand. Such damage may include non-pecuniary damage.
...
3. The request may only be submitted within three months
following the termination of the case. The petitioner shall be
heard, or at least summoned, and may be assisted during the
hearing by a lawyer. At the hearing the lawyer shall be offered
the opportunity to make any observations required.
4. The review chamber shall consist as far as possible of the
judges who have dealt with the case at the trial.
5. The court competent to grant compensation shall be the
court with jurisdiction as to both facts and law (gerecht in
feitelijke aanleg) before which, at the time of its termination,
the case was or would have been prosecuted or else was last
prosecuted, or, if that court is a District Court
(kantonrechter), the Regional Court of that judicial district.
..."
Section 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.
3. The decision shall be reasoned. The decision shall
immediately be notified to the former suspect or to his heirs,
but in case of a rejection the grounds shall be omitted. In that
case the former suspect or his heirs may consult the statement
of grounds at the registry."
It was not possible to file an appeal on points of law against
a decision based on these provisions.
28. Sections 591 and 591a CCP, in so far as relevant, provided as
follows:
Section 591
"1. Compensation shall be paid to the former suspect or his
heirs at the expense of the State 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 (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 will issue
an order of payment (bevelschrift van tenuitvoerlegging) for the
amount of the compensation.
3. Petitioners can be heard. If they so wish they will be
heard, or at least summoned. They may be assisted by a lawyer.
Section 24, last paragraph, applies.
..."
Section 591a
"1. If the case ends without imposition of a punishment or
measure ..., the former suspect or his heirs shall be granted
compensation at the expense of the State 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 at the expense of the State for the damage which he
has actually suffered through loss of time as a result to the
preliminary investigation (gerechtelijk vooronderzoek) 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. Sections 90 and 591, subsections 2 to 5, shall apply by
analogy."
29. The Code of Criminal Procedure, which was adopted in 1921 and
entered into force in 1926, assumed that matters dealt with therein
were to be decided either by the trial court, following a hearing which
in principle was public, or by the review chamber following a hearing
in camera to which the public had no access. Proceedings before the
review chamber were governed by sections 21 to 26.
Section 21 CCP, in so far as relevant, provided as follows:
"1. All cases in which a decision is not required by law to be
taken by the trial court at the trial hearing or taken at the
trial hearing ex officio shall be dealt with by the review
chamber. However all applications, requests and proposals made
at the trial shall be examined and decided at the trial.
2-4. ..."
Section 24 CCP, in so far as relevant, provided as follows:
"1. The accused is entitled to be assisted by counsel at all
hearings.
2-3. ...
4. The counsel or the lawyer will be offered the opportunity
to make any observations required at the hearings."
30. Requests based on sections 89 and following and on sections 591
and 591a were heard by the review chamber. As is indicated in the
preceding paragraph, review chamber proceedings were not intended to
be public. However, since the Convention is directly applicable in the
Netherlands, taking precedence over domestic law, it was open to
petitioners to claim that a request based on one of these provisions
related to a "civil right" for the purposes of Article 6 para. 1
(art. 6-1) of the Convention and that they were therefore entitled to
a public hearing. It appears from the case-law of the Supreme Court
that if the review chamber hearing the request accepted this argument,
they were obliged to grant a public hearing. It was also open to the
review chamber hearing the request to decide of its own motion that
Article 6 para. 1 (art. 6-1) was applicable, with the resultant
obligation to hear the request in public unless the petitioner
preferred a hearing in camera (see, inter alia, the Supreme Court's
judgment of 23 November 1990, Nederlandse Jurisprudentie (Netherlands
Law Reports, "NJ") 1991, no. 184).
In an appeal on points of law for safeguarding the law
(cassatieberoep in het belang der wet) against a decision of
27 March 1992 by the 's-Hertogenbosch Court of Appeal, the
Procurator-General (procureur-generaal) to the Supreme Court addressed
the question, which he answered in the negative (see paragraphs 19-21
of his statement of grounds of appeal), whether a request for
compensation based on section 89 CCP led to the determination of a
"civil right". In its judgment rejecting the appeal (judgment of
2 February 1993, NJ 1993, no. 553) the Supreme Court expressly declined
to rule on this issue.
2. Changes in the law as from 1 January 1994
31. The Act of 8 November 1993 (see paragraph 26 above) is intended
to ensure the conformity of review chamber proceedings with Article 6
(art. 6) of the Convention as the legislature considers that this
provision (art. 6) is to be interpreted in the light of the Court's
case-law. The legislature has chosen to retain the general principle
that review chamber proceedings are not public but to prescribe public
hearings where Article 6 (art. 6) makes that necessary.
Section 22 CCP, in so far as it is relevant, now reads:
"1. Review chamber proceedings shall not be public unless they
are required to be by law.
2-4. ..."
The explanatory memorandum (Kamerstukken (Parliamentary
Documents) II, 1991-1992, 22,583 no. 3, pages 11 and following)
enumerates the review chamber proceedings which, in the view of the
Government, are covered by Article 6 (art. 6) of the Convention. In
this connection, the following passage taken from the explanatory
memorandum is of relevance (page 17):
"The actions for obtaining compensation for damage or costs* are
of a composite nature (gemengd van aard) (sections 89, 90, 591
and 591a). The close link between the action and criminal
proceedings admittedly justifies placing them in the Code of
Criminal Procedure, but what is at stake in the proceedings can
be qualified as of a civil-law nature. The applicability of
Article 6 (art. 6) is thus established." (*emphasis in the
original)
Accordingly, the third paragraph of section 89 now reads:
"The request may only be submitted within three months following
the termination of the case. It shall be dealt with by the
review chamber in public."
Similarly, the third paragraph of section 591 now reads:
"The request shall be dealt with by the review chamber in
public."
As a further consequence of the fact that Article 6 (art. 6) is
now considered applicable to the proceedings brought pursuant to
section 89, the third paragraph of section 90 has been amended so as
to read:
"The decision shall be notified without delay to the former
suspect or his heirs."
The explanatory memorandum states the following:
"Section 24 requires the decision to be reasoned. It is
incompatible with the proposed publicity of the proceedings and
of the decision to omit reasoning in a decision rejecting the
request."
B. Claims for compensation in equity as compared with an entitlement
to compensation
32. In its judgment of 7 April 1989, NJ 1989, no. 532, the Civil
Division of the Supreme Court ruled that section 89 CCP did not prevent
the former suspect who considered himself a victim of unlawful
detention from bringing proceedings in tort against the State and
claiming full compensation for any damage suffered. The Supreme Court
held, inter alia, that
"[section 89] did not purport to do more than offer the courts
the possibility of granting compensation `for detention that was
lawful but nevertheless shown afterwards to be unjustified'".
Further to that judgment, the Criminal Division of the Supreme
Court, in its judgment of 2 February 1993, NJ 1993, no. 552, held,
inter alia:
"Sections 89 and following CCP offer the former suspect a speedy
and inexpensive but, in view of what is laid down in section 90,
first and second paragraphs, limited possibility of obtaining
compensation for damage suffered on grounds of equity. This
procedure therefore does not extend to the determination by the
courts of complete compensation for damage on the basis of a tort
committed by the State vis-ā-vis the (former) suspect and
therefore does not affect the possibility open to the former
suspect of bringing his claim before the civil courts on that
basis. Given the limited purport of the procedure established
by sections 89 and following, what is laid down in those
provisions as regards the procedure to be followed does not
inhibit their application even in cases of unlawful detention."
33. Recently the Civil Division of the Supreme Court has confirmed
that a former suspect may bring an action before the civil courts only
if he or she wishes to claim compensation on the basis of unlawful
detention and that otherwise the only remedy available is to bring
proceedings under sections 89 and following CCP (judgment of
23 December 1994, Rechtspraak van de Week (Weekly Law Reports, "RvdW")
1995, no. 12).
It thus appears from the case-law that former suspects may choose
between proceedings before the criminal courts and proceedings before
the civil courts. For their claim to be allowed by the civil courts,
they must state, and prove, that the detention was unlawful in their
regard; if they are successful, they are entitled to full compensation.
For their claim to be accepted by the criminal courts, no more is
required than that the case should end without the imposition of a
punishment or measure and that the review chamber should consider that
reasons in equity exist to award compensation.
34. There was formerly some controversy in legal writing as to when
deprivation of liberty in connection with criminal proceedings
constituted a tort, but this has now been settled by two recent
judgments of the Supreme Court.
In its judgment of 29 April 1994, RvdW 1994, no. 104, the Supreme
Court rejected the suggestion that pre-trial detention undergone in
connection with a criminal act of which the suspect is afterwards
acquitted should invariably be considered to be retrospectively
unlawful and that the State should therefore be held liable to pay
compensation for all damage suffered by the former suspect. The
Supreme Court held that, on the contrary, only additional circumstances
could lead to such a finding. These additional circumstances were
referred to in this judgment and further elaborated in the Supreme
Court's above-mentioned judgment of 23 December 1994. From this
statement of the law it envisages that pre-trial detention can only
engage the State's liability in tort, and entitle the former suspect
to full compensation, in two cases:
- firstly, if it is established, either by the judgment acquitting
the former suspect or on the basis of other evidence contained in the
case file of the criminal proceedings, that the suspicion which existed
when the pre-trial detention was ordered and which at that time
justified the detention had no basis in fact; or
- secondly, if the pre-trial detention was ordered in breach of
written or unwritten law, that is to say, if the legal requirements for
such detention were not fulfilled, if the detention was ordered in
violation of the fundamental rights of the accused (for example,
without hearing him) or if in the circumstances of the case the orders
were so disproportionate as to be incompatible with the authorities'
obligation to exercise due care.
PROCEEDINGS BEFORE THE COMMISSION
35. Mr van Zon and Mr Masson lodged their applications (nos. 15379/89
and 15346/89) with the Commission on 2 and 8 June 1989, respectively.
Mr Masson, relying on Article 3, Article 5 paras. 1, 2, 3 and 5,
Article 6 paras. 1, 2 and 3 and Article 13 of the Convention,
Article 1 of Protocol No. 1 and Article 2 of Protocol No. 7 (art. 3,
art. 5-1, art. 5-2, art. 5-3, art. 5-5, art. 6-1, art. 6-2, art. 6-3,
art. 13, P1-1, P7-2), formulated various complaints concerning his
police custody and detention on remand as well as the failure to grant
him compensation for his pre-trial detention and reimbursement of his
legal costs.
Mr van Zon, relying on Article 6 paras. 1 and 2 and Article 13
(art. 6-1, art. 6-2, art. 13), complained only of the failure to grant
him compensation for his pre-trial detention and reimbursement of his
legal costs.
36. On 1 April 1992 the Commission decided to adjourn its examination
of both applicants' complaints under Article 6 para. 1 (art. 6-1)
concerning their requests for compensation of legal and other costs and
to declare the remainder of their applications inadmissible. The
Commission joined the applications and declared them admissible for the
remainder on 8 January 1993, and decided in addition that Mr Masson's
complaint under Article 13 (art. 13) was so closely related to his
complaint under Article 6 para. 1 (art. 6-1) that the two complaints
could not be dissociated at that stage.
In its report of 4 July 1994 (Article 31) (art. 31), it expressed
the opinion that there had been a violation in each case of Article 6
para. 1 (art. 6-1) (fifteen votes to nine) and that it was not
necessary to examine Mr Masson's complaint under Article 13 (art. 13)
(twenty-one votes to three).
The full text of the Commission's opinion and of the dissenting
opinion contained in the report is reproduced as an annex to this
judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 327-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
37. The Government concluded both their memorial and their argument
at the Court's hearing by expressing the view that Article 6 para. 1
(art. 6-1) was not applicable in the present case and, even if it were,
had not been violated.
38. At the hearing, counsel for the applicant Mr van Zon (the only
applicant to take part in the proceedings before the Court - see
paragraph 2 above) concluded that "[f]or the reasons set out in the
introductory application, the additional observations submitted in the
proceedings before the Commission, the written submission in the
proceedings before the Court and the reasons expressed during the
hearing", Article 6 para. 1 (art. 6-1) applied and had been violated.
AS TO THE LAW
I. SCOPE OF THE CASE
39. The applicant Mr van Zon asked the Court to consider his
complaint under Article 6 para. 2 (art. 6-2), which the Commission had
declared inadmissible as being manifestly ill-founded.
40. The Court reiterates that the compass of the case before it is
delimited by the Commission's decision on admissibility (see the recent
authority, the McMichael v. the United Kingdom judgment of
24 February 1995, Series A no. 307-B, p. 50, para. 71). Consequently,
the Court has no jurisdiction to entertain this complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
41. Article 6 para. 1 (art. 6-1) of the Convention, in so far as
relevant, provides as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal ..."
42. The applicants submitted that, contrary to the requirements of
Article 6 para. 1 (art. 6-1), their requests for financial compensation
for the restrictions on their liberty (section 89 para. 1 CCP) and
their requests for reimbursement of their legal costs incurred in
connection with the criminal proceedings (section 591a para. 2 CCP) had
not been dealt with in public by an impartial tribunal.
43. The Government contested this allegation, whereas the Commission
accepted it.
Applicability of Article 6 para. 1 (art. 6-1)
Whether there was a "dispute" over a "right"
(a) Relevant principles
44. For Article 6 para. 1 (art. 6-1) under its "civil" head to be
applicable, there must be a "dispute" (contestation in the French text)
over a "right" which can be said, at least on arguable grounds, to be
recognised under domestic law. The "dispute" must be genuine and
serious; it may relate not only to the actual existence of a right but
also to its scope and the manner of its exercise (see inter alia the
Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B,
p. 38, para. 22). The outcome of the proceedings must be directly
decisive for the right in question, mere tenuous connections or remote
consequences not being sufficient to bring Article 6 para. 1 (art. 6-1)
into play (see inter alia the Fayed v. the United Kingdom judgment of
21 September 1994, Series A no. 294-B, pp. 45-46, para. 56).
(b) Arguments before the Court
45. The applicants argued that there existed between them and the
State a "dispute" over a "right" which was recognised under Netherlands
law. The right they claimed - which, in their view, followed from the
presumption of innocence enshrined in Article 6 para. 2 (art. 6-2) -
was that of a former suspect to reimbursement of his or her necessary
legal costs and compensation for damage suffered in the course of
criminal proceedings ending in a complete acquittal.
They sought to distinguish the present case from the earlier
cases of Lutz v. Germany, Englert v. Germany and Nölkenbockhoff v.
Germany (judgments of 25 August 1987, Series A nos. 123-A, 123-B and
123-C), which had not ended in a complete acquittal but had been
discontinued for other reasons.
They contended that, although sections 89 para. 1 and 591a
para. 2 CCP stated that the trial court "may" award compensation, the
wording of section 90 ("Compensation shall be awarded in each case if
..." - see paragraphs 27 and 28 above) proved that upon acquittal the
former suspect was in principle granted an entitlement to compensation,
albeit that it was within the discretion of the trial court to make
exceptions to this principle and also to determine the amount of
compensation. They argued that this interpretation was supported by
a judgment of the Supreme Court in which it was held that an
entitlement to damages arose from criminal-investigation measures
against a person who was subsequently shown to be innocent. Similarly,
in the applicants' view, the proceedings for compensation under
sections 89 para. 1 and 591a para. 2 CCP enabled a former suspect to
claim compensation for detention and prosecution which - as appeared
from the acquittal - had retrospectively been shown to lack
justification.
In their submission, such a right to compensation was a "civil"
right.
46. In the Commission's opinion, an acquitted person was entitled to
seek compensation for damage allegedly suffered as a result of his
detention on remand and reimbursement of the legal and ancillary costs
incurred in the criminal proceedings against him. This, in its view,
meant that the applicants could claim on arguable grounds to have a
"right" recognised under Netherlands law. Furthermore, the right
claimed consisted of financial reparation for pecuniary and
non-pecuniary damage; it was therefore "civil" in nature,
notwithstanding the origin of the dispute and the jurisdiction of the
criminal courts.
47. The Government contested the applicability of Article 6 (art. 6).
They argued firstly that there was no "dispute". The State had
not taken any stance as to whether or not the applicants should be
awarded compensation. Accordingly, in proceedings under sections 89
para. 1 and 591a para. 2 CCP no position of the State was in issue.
Nor was the State a party to those proceedings. The prosecution was
heard, not as a party, but as an adviser to the court. In addition,
unlike actions in tort in the civil courts, the proceedings in question
raised no issue of "lawfulness".
Secondly, there was in the Government's submission a clear
distinction to be drawn between claiming compensation on the basis of
tortious liability and requesting compensation on the basis of equity.
Only when restrictions on liberty constituted a tort did a right to
compensation arise. Sections 89 para. 1 and 591a para. 2 CCP were
concerned with discretionary compensation to be granted on the basis
of equity. That no entitlement as such to compensation was involved
was clear from the wording of these provisions: sections 89 para. 1 and
591a para. 2 stated that the trial court "may" award compensation and
section 90 specified that it might do so only "if [it was] of the
opinion that there [were] reasons in equity ..." (see paragraphs 27
and 28 above).
(c) Application of the relevant principles
48. As to whether a "dispute" over a "right" existed so as to attract
the applicability of Article 6 para. 1 (art. 6-1), the Court will first
address the issue whether a "right" to the compensation claimed could
arguably be said to be recognised under national law.
49. In view of the status of the Convention within the legal order
of the Netherlands, the Court observes firstly that the Convention does
not grant to a person "charged with a criminal offence" but
subsequently acquitted a right either to reimbursement of costs
incurred in the course of criminal proceedings against him, however
necessary these costs might have been, or to compensation for lawful
restrictions on his liberty. Such a right can be derived neither from
Article 6 para. 2 (art. 6-2) nor from any other provision of the
Convention or its Protocols. It follows that the question whether such
a right can be said in any particular case to exist must be answered
solely with reference to domestic law.
In this connection, in deciding whether a "right", civil or
otherwise, could arguably be said to be recognised by Netherlands law,
the Court must have regard to the wording of the relevant legal
provisions and to the way in which these provisions are interpreted by
the domestic courts.
50. Sections 591 para. 1 and 591a para. 1 CCP provide that in given
circumstances various specified expenses "shall" be refunded to a
former suspect (see paragraph 28 above). A duty is thereby imposed on
the State to reimburse the sums involved if the applicable conditions
are met, and consequently the former suspect is granted a right. It
is to be recalled that the judge presiding over the chamber of the
's-Hertogenbosch Court of Appeal which heard the cases did in fact
order the repayment of certain sums to the applicants under
section 591a para. 1 (see paragraph 24 above) and that neither
applicant made a claim under section 591 para. 1 (see paragraph 22
above).
51. On the other hand, sections 89 para. 1 and 591a para. 2 lay down
that the competent court "may" award the former suspect compensation
for certain damage not covered by sections 591 para. 1 and 591a
para. 1. In contrast to these latter provisions, sections 89 para. 1
and 591a para. 2 do not require the competent court to hold the State
liable to pay even if the conditions set out therein are met.
Moreover, section 90 para. 1 CCP makes the award of compensation
contingent on the competent court being of the opinion "that reasons
in equity" exist therefor (see paragraph 27 above). The grant to a
public authority of such a measure of discretion indicates that no
actual right is recognised in law.
Finally, the Court cannot overlook the relevant rulings of the
Netherlands Supreme Court, in particular that of 2 February 1993,
NJ 1993, no. 552, and that of 29 April 1994, RvdW 1994, no. 104.
Admittedly, as the applicants argued, the Supreme Court's case-law has
created a measure of jurisdiction in the matter for the civil courts
(see paragraph 32 above). However, the first-mentioned judgment of the
Supreme Court, although subsequent to the events complained of, shows
that a right to full compensation (enforceable by the civil courts) is
recognised only with regard to unlawful detention (see paragraph 33
above). The latter judgment, which is even more recent, makes it clear
that acquittal per se does not render pre-trial detention
retrospectively unlawful (see paragraph 34 above). The applicants have
not contended before this Court that their case meets any of the
conditions stated in the latter judgment for holding the restrictions
on their liberty to have been unlawful.
52. In view of the above considerations, the Court concludes that,
whether or not the impugned proceedings involved a "dispute" for the
purposes of Article 6 para. 1 (art. 6-1), the claims asserted by the
applicants did not in any event concern a "right" which could arguably
be said to be recognised under the law of the Netherlands. This being
so, Article 6 para. 1 (art. 6-1) of the Convention was not applicable
to the impugned proceedings and has therefore not been violated in
relation to either applicant.
III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION
53. Article 13 (art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
Before the Commission, Mr Masson argued that, contrary to
Article 13 (art. 13) of the Convention, he had no effective remedy in
domestic law against the decisions complained of.
54. Having found a violation of Article 6 para. 1 (art. 6-1), the
Commission did not find it necessary to examine the complaint under
Article 13 (art. 13).
55. The allegation of violation of Article 13 (art. 13) was not
referred to in the proceedings before the Court, which sees no cause,
either on the facts or in law, to address the matter of its own motion.
FOR THESE REASONS, THE COURT
1. Holds unanimously that it has no jurisdiction to entertain
Mr van Zon's complaint under Article 6 para. 2 (art. 6-2) of the
Convention;
2. Holds by eight votes to one that Article 6 para. 1 (art. 6-1) of
the Convention is inapplicable;
3. Holds unanimously that Article 6 para. 1 (art. 6-1) of the
Convention has not been violated in relation to either applicant;
4. Holds unanimously that it is not necessary to examine Mr Masson's
complaint under Article 13 (art. 13) of the Convention.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 28 September 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the concurring
opinion of Mr Martens is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE MARTENS
1. I concur with the Court's finding that Article 6 (art. 6) has not
been violated, but not with its reasoning.
2. The applicants' complaints concern non-contentious proceedings
before a criminal court. In those proceedings the applicants asked the
Court to grant them financial compensation for the restrictions on
their liberty which they had suffered during, and the lawyers' fees
which they had incurred in connection with, a criminal prosecution
brought against them, their claim being based (solely) on their
acquittal. However, the objective of the impugned proceedings was not
enforcement of a civil right to compensation, since under the law of
the Netherlands, as under that of several other Contracting States (1),
acquittal does not ipso facto entail a right to compensation for
lawfully imposed detention on remand; nor, for that matter, to
reimbursement of lawyers' fees. In my view that suffices (2) to
conclude that Article 6 para. 1 (art. 6-1) was not applicable under its
"civil" head.
_______________
1. See the Sekanina v. Austria judgment of 25 August 1993, Series A
no. 266-A, p. 14, para. 25.
2. In non-contentious proceedings there is ipso facto no "dispute"
(see the separate opinion of Judge De Meyer in the case of H. v.
Belgium, Series A no. 127-B, pp. 48 et seq.) and, since the applicants
have had access to a court there is no scope for applying the
"arguability" test (see my concurring opinion in the case of Salerno
v. Italy, Series A no. 245-D, pp. 57 et seq.).
_______________
3. I consider, however, that Article 6 para. 1 (art. 6-1) was
applicable under its "criminal" head. In my opinion the Netherlands
proceedings under consideration belong to the same category as those
in the Sekanina v. Austria case (3): proceedings in which the former
accused, having been acquitted, is offered the opportunity to ask the
trial court to grant him compensation in respect of his detention on
remand and the costs of his defence. Proceedings of this type, which
according to that judgment are known in several Contracting States, are
to be characterised as a kind of extension of, or appendix to, the
criminal proceedings which ended as such with the judgment of
acquittal. Consequently, in conformity with the purposes of the
Convention, such proceedings are also governed by Article 6 para. 1
(art. 6-1) under its "criminal" head.
_______________
3. See note 1.
_______________
4. Underlying proceedings of this type is, evidently, the notion
that acquittal does not ipso facto entail a right to compensation for
lawfully imposed detention on remand, but that the question whether
equity requires payment of compensation to an acquitted accused and,
if so, to what extent depends on all the circumstances of the case and
therefore is best left to the discretion of the trial court, which has
the fullest knowledge of the circumstances. I see nothing wrong in
such a notion. Under the Convention there is no right to compensation
(4), and according to the Hauschildt doctrine (5) the mere fact that
the decision on compensation is taken by the same judge or judges who
acquitted does not affect the tribunal's impartiality, since the
questions to be answered when settling these two issues are completely
different.
_______________
4. See the Sekanina judgment (note 1 on page 19), pp. 13-14, para. 25.
5. See the Hauschildt v. Denmark judgment of 24 May 1989, Series A
no. 154, pp. 21-22, paras. 49-50.
_______________
Moreover, under this approach there are good reasons for hearing
such cases in camera, since it may very well be that there are facts
which, notwithstanding the acquittal, militate against granting the
former accused any compensation and which, in order to protect his or
her private life, are better not ventilated in public. The same
applies to the requirement in Article 6 para. 1 (art. 6-1) of the
Convention that judgment should be pronounced publicly: here again the
nature of the particular proceedings justifies an exception (6).
_______________
6. In this context I refer to the Schuler-Zgraggen v. Switzerland
judgment of 24 June 1993, Series A no. 263, p. 20, para. 58 (third
sub-paragraph), where the Court seems to suggest that the nature of the
issue involved may be considered decisive in regard to the publicity
requirements under Article 6 para. 1 (art. 6-1).
_______________
5. In sum, although I find that Article 6 para. 1 (art. 6-1) is
applicable, I share the Court's conclusion that it has not been
violated.