EHRM, 01-03-2007, nr. 30810/03

The facts of the case, as submitted by the parties, may be summarised as follows.

On an unspecified date, the applicant was arrested and placed in pre-trial detention on suspicion of involvement — together with others — in various (attempted) thefts of lorries containing merchandise and thefts of merchandise from lorries (inter alia, washing machines, laundry dryers and other household appliances, telephones, computer parts, car radios, audio-visual devices and materials, clothes, bags, shoes, camping and sports equipment) committed between 1 August 1996 and 28 October 1997.

On 23 December 1997, the applicant was summoned to appear before the Regional Court (arrondissementsrechtbank) of 's‑Hertogenbosch on 29 January 1998 in order to stand trial on various charges of (attempted) burglary, deliberately handling stolen goods and membership of a criminal organisation. Separate criminal proceedings were brought against a number of co-accused.

In its judgment of 20 May 1998, the Regional Court (arrondissementsrechtbank) of 's‑Hertogenbosch convicted the applicant of several counts of participation in (attempted) burglary, deliberately handling stolen goods and membership of a criminal organisation. The Regional Court found it established that the applicant had been involved in the theft of 120 laundry dryers from a lorry and a trailer; the theft of a lorry; the theft of large numbers of telephones, computer parts and car radios from a lorry; the theft of 300 CD auto changers, 62 radio cassette players and a speaker sound system from a truck; the theft of large quantities of inter alia audio devices, dishwashers, shoes, vacuum cleaners and clothing from lorries and thefts of lorries; the handling of one or more stolen video cameras; the attempted theft of a lorry and the attempted theft of goods from a lorry. It sentenced the applicant to five years' imprisonment less the time spent in pre-trial detention.

The applicant lodged an appeal with the Court of Appeal (gerechtshof) of 's‑Hertogenbosch. In its judgment of 29 January 1999, the Court of Appeal quashed the judgment of 20 May 1998, convicted the applicant of having participated on 28 or 29 September 1997 in the theft of a lorry and a trailer containing 120 laundry dryers, of having on 25 September 1997 stolen a lorry combination and a number of printers and of having handled — in the period between 1 August 1996 and 28 October 1997 — a piece of clothing and a video camera in the knowledge that these items had been obtained through crime. It acquitted the applicant of the remainder of the charges, having found that these had not been lawfully and convincingly proved. The Court of Appeal sentenced him to thirty-six months' imprisonment of which twelve months were suspended for a probationary period of two years. In addition, it declared inadmissible the compensation claim filed by the civil party (benadeelde partij). Finding this claim to be too complicated to be dealt with in criminal proceedings, the Court of Appeal decided that it should be brought before a civil court.

In the meantime, on 7 January 1999, the public prosecutor had summoned the applicant to appear before the Regional Court of 's‑Hertogenbosch on 4 February 1999 in order to be heard on the prosecutor's request for an order for the confiscation of illegally obtained advantage (vordering tot ontneming van wederrechtelijk verkregen voordeel) within the meaning of Article 36e of the Criminal Code (Wetboek van Strafrecht), which had been assessed by the public prosecutor at a total amount of 147,493 Netherlands guilders (NLG i.e. 67,020.16 euros [EUR]).

At the hearing held before the Regional Court on 4 February 1999, the prosecutor maintained the request for a confiscation order, arguing that it also concerned similar offences as referred to in Article 36e § 2 of the Criminal Code and that, although the Court of Appeal had acquitted the applicant of most of the offences he had been charged with, there remained sufficient indications that he had committed them. The applicant argued that a confiscation order could only be imposed in respect of the offences of which he had been found guilty. This would, according to the prosecutor's assessment, result in a confiscation order for an amount of NLG 13,989 (EUR 6,347.93) at most.

In its ruling of 18 March 1999, the Regional Court issued a confiscation order for the amount of NLG 13,898, to be replaced, if this sum was not paid or recovered, by 110 days' detention in lieu. It held that the acquittal in the judgment handed down by the Court of Appeal on 29 January 1999, for which no specific reasons were given, could therefore only be understood as meaning that there were no indications that the applicant had committed the offences concerned, let alone that he might have derived any resulting advantage.

The applicant, but not the public prosecutor, filed an appeal against this ruling with the Court of Appeal of 's‑Hertogenbosch. The applicant denied having derived any advantage from the offences of which he had been convicted.

In its decision of 30 March 2001, following a hearing held on 15 February 2001, the Court of Appeal quashed the ruling of 18 March 1999 and imposed a confiscation order in the amount of NLG. 147,493, to be replaced, if this sum was not paid or recovered, by 490 days' detention in lieu. Its reasoning included the following:

In relevant part, the police procès-verbal of 4 September 1998, as appended to this ruling, reads as follows:

In respect of each of the counts 2B, 3, 4b–i and 4m, as set out in the initiatory summons issued in the applicant's case, the procès-verbal of 4 September 1998 — in so far as it was used in evidence by the Court of Appeal in the confiscation proceedings — contains a statement that, in the substantive criminal proceedings in first instance, the applicant was convicted of the charge concerned. It further appears from this procès-verbal that, in respect of each of these counts, the estimate of the illegally obtained advantage was mainly based on the contents of intercepted telephone conversations in which the participants (thieves and handlers of stolen goods) discussed money matters in relation to stolen goods, the presence of some of the stolen goods in the homes of a number of perpetrators, and the wholesale purchase value of the stolen goods.

The applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad) against the ruling of 30 March 2001, complaining inter alia that the imposition of a confiscation order in respect of offences of which he had been acquitted violated his right to be presumed innocent as guaranteed by Article 6 § 2 of the Convention.

In his advisory opinion, the Procurator General to the Supreme Court considered — on the basis of the Court's considerations in its judgment in the case of Phillips v. the United Kingdom (no. 41087/98, §§ 31–33 and 35, ECHR 2001-VII) — that the scope of Article 6 § 2 of the Convention generally did not extend to confiscation proceedings, but that this did not affect the obligation to verify whether it followed from the particular circumstances of the applicant's case nevertheless that an issue under Article 6 § 2 arose nevertheless. On this point, the Procurator General considered, on the basis of an extensive analysis of the Court's case-law under Article 6 § 2, that the question arose whether the conclusion of the Court of Appeal that there were sufficient indications that the applicant had committed offences similar to those of which he had been convicted entailed a finding of ‘guilt’, taking into account that the applicant had been acquitted of those similar offences.

The Procurator General observed that the Court of Appeal had found that, despite the acquittal, there were sufficient indications that the offences of which the applicant had been acquitted had been committed by him. In his opinion, this was incompatible with the general rule — reaffirmed by the Court in its judgment in the case of Asan Rushiti v. Austria (no. 28389/95, § 31, 21 March 2000, — that following a final acquittal, even the voicing of suspicions regarding an accused's innocence was impermissible and incompatible with Article 6 § 2. Furthermore, the Court of Appeal had based its finding in the confiscation proceedings on evidence apparently insufficient for a criminal conviction and it resulted in a decision imposed on the applicant of such a severity that it should be regarded as a ‘penalty’ within the meaning of Article 7 § 1 of the Convention. Further taking into account that the Court of Appeal had based its finding that there were sufficient indications that similar offences had been committed by the applicant also on a convicting, yet subsequently quashed, judgment given by the Regional Court, the Procurator General was of the opinion that the conclusion that Article 6 § 2 had been violated was unavoidable. In his opinion, the possibility under Article 36e § 2 of the Criminal Code to impose a confiscation order was limited to offences not included in a charge brought, such as offences appended to the summons for the court's information (ad informandum gevoegde feiten) or other offences that were apparent from the case file (andere feiten die blijken uit het proces-verbaal), as mentioned in the Explanatory Memorandum in respect of Article 36e § 2 of the Criminal Code. Consequently, he advised the Supreme Court to accept the applicant's complaint under Article 6 § 2, to quash the decision of 30 March 2001 and to remit the case to a different Court of Appeal for a fresh determination of the applicant's appeal.

On 1 April 2003 the Supreme Court rejected the applicant's appeal in cassation. It held, in so far as relevant, as follows:

This decision was published in the Netherlands Law Reports 2003, no. 497.

In 2004 the applicant agreed with the Central Judicial Receiving Office (Centraal Justitiëel Incasso Bureau) that he would pay EUR 10,000 at once and the remainder in monthly instalments of EUR 150.

Article 36e of the Criminal Code (Wetboek van Strafrecht) provides:

The possibility to deprive a person of proceeds of crime was introduced in 1983 by the Financial Penalties Act (Wet Vermogenssancties). On 1 March 1993, the Act of 10 December 1992 on the extension of the possibilities to apply the measure of illegally obtained advantage and other financial penalties (Wet tot verruiming van de mogelijkheden tot toepassing van de maatregel van ontneming van wederrechtelijk verkregen voordeel en andere vermogenssancties) entered into force. One of the changes brought about by this Act was that the proceedings on the measure of deprivation of illegally obtained advantage were disconnected from the substantive criminal proceedings, among other reasons in order to prevent situations in which issues concerning illegally obtained advantage would overshadow and affect the duration of the substantive criminal proceedings.

It established a specific procedure — separate from the criminal proceedings taken against a suspect — for imposing a confiscation order under Article 36e of the Criminal Code. This specific procedure is set out in Articles 511b–511i of the Code of Criminal Procedure (Wetboek van Strafvordering). The legislature's choice in setting it out thus was to demonstrate that it concerned a continuation of the criminal prosecution of the convicted person, the purpose being to determine the sanction to be imposed (Kamerstukken (Parliamentary Documents) II, 1989/90 session, 21,504 no. 3, p. 14). The confiscation order procedure is not designed or intended for the determination of a criminal charge or a criminal penalty, but for the detection of illegally obtained proceeds, to determine the pecuniary value thereof and, by way of a judicial confiscation order, to deprive the beneficiary of these proceeds. The aim pursued by the possibility of imposing confiscation orders is twofold; in the first place to remedy an unlawful situation and, secondly, to bring about a general crime-preventive effect by rendering crime unattractive on account of an increased risk that proceeds of crime will be confiscated.

Pursuant to Article 511b § 1 of the Code of Criminal Procedure, a request for a confiscation order under Article 36e of the Criminal Code must be filed by the public prosecutor with the Regional Court as soon as possible and not later than two years after a conviction has been handed down in the substantive criminal proceedings by the first instance trial court. It is not required that, when filing such a request, the conviction has obtained the force of res iudicata.

Article 311 § 1 of the Code of Criminal Procedure obliges the public prosecutor to indicate no later than when delivering the closing speech (requisitoir) before the first-instance trial court in the substantive criminal proceedings whether the prosecution intends to seek a confiscation order in case of a conviction. The purpose of this obligation is to prevent a situation that a convicted person is confronted, at the latest two years after his conviction by a first instance court, with a request for a confiscation order, and to express that a confiscation order procedure does not constitute a fresh, second prosecution based on the same facts but is to be understood as a separate part of the earlier substantive criminal proceedings and that the prosecution does not stop after the end of the substantive criminal proceedings but is pursued in the confiscation order procedure.

The notion of ‘similar offence or offences’ under Article 36e § 2 of the Criminal Code relates to offences of a similar nature as those having formed the object of the criminal proceedings against the accused, such as for instance drugs offences, property offences and offences involving forgery and fraud.

The rules of evidence that apply in criminal proceedings, as set out in Articles 338–344a of the Code of Criminal Procedure, are not applicable to confiscation order procedure. In that procedure it is for the public prosecutor to establish a prima facie case that there are sufficient indications that the person concerned has committed one or more similar offences within the meaning of Article 36e § 2 of the Criminal Code having generated illegally obtained advantage. It is for the person concerned to rebut the prosecutor's case. The judge will decide the case on the basis of a balancing of probabilities, comparable to the standard of proof applicable in civil proceedings.

The fact that the rules of evidence applicable in criminal proceedings do not apply to the confiscation order procedure entails that — if in criminal proceedings an accused has been partly convicted and partly acquitted of the charges brought against him — in subsequent confiscation order proceedings the judge may impose a confiscation order against the person concerned which is not only based on the offence(s) of which he has been convicted, but also on the similar offence(s) of which he has been acquitted but in respect of which the judge is satisfied, on a balance of probabilities, that there exist sufficient indications that he has nonetheless committed them.

Pursuant to Article 511f of the Code of Criminal Procedure, the judge can derive the assessment of the actual amount of illegally obtained advantage under Article 36e of the Criminal Code only from the contents of ‘lawful means of evidence’ (wettige bewijsmiddelen). Article 339 of the Code of Criminal Procedure defines ‘lawful means of evidence’ as the personal observations of the judge, statements of the accused, statements of a witness, statements of an expert, and written materials (such as, for instance, judicial decisions and formal minutes and records). However, unlike the requirement in criminal proceedings that a conviction can only be based on evidence that is corroborated by other evidence, the assessment of the amount of illegally obtained advantage in confiscation order proceedings can be based on only one evidentiary item, such as for instance a formal record containing the statement of the person concerned.

The applicant complained that the confiscation order imposed on him infringed his right to be presumed innocent under Article 6 § 2 of the Convention since it was based on a judicial finding that he had derived advantage from offences of which he had been acquitted in the substantive criminal proceedings that had been brought against him.

Article 6 § 2 of the Convention provides as follows:

The Government denied that there had been a breach of this provision.

Article 41 of the Convention provides: