EHRM, 18-01-2011, nr. 45482/06

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.

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:

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.

Article 27 of the Code of Criminal Procedure defines the notion of a suspect in criminal proceedings. It reads in its relevant part:

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:

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:

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:

Pursuant to Article 150 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), the plaintiff claiming damages under Article 6:162bears 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).

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:

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.