SCHREURS v. THE NETHERLANDS
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Hubertus Wilhelminus Petronella Schreurs, is a Netherlands national, who was born in 1976 and lives in Tegelen. He was represented before the Court by Mr J. Boksem, a lawyer practising in Leeuwarden. 2 Between January 2008 and March 2008 the applicant published a number of advertisements on internet web sites offering goods for sale. He obtained payment in advance by bank transfer into bank accounts of accomplices. He withdrew the sums thus received in cash but never delivered the goods purportedly sold. 3. The applicant was arrested and taken into police custody (inverzekeringstelling). Subsequently he was taken into detention on remand (voorlopige hechtenis). In all, the applicant spent 188 days in pre-trial detention. 4. On 21 October 2011 the Roermond Regional Court (rechtbank) found the applicant guilty of “making a habit of complicity in money laundering” (witwassen; Articles 420bis and 420ter of the Criminal Code (Wetboek van Strafrecht)). It sentenced him to 210 days’ imprisonment, 22 days of which was suspended for one year, and ordered him to compensate his victims. 5. The applicant appealed. 6. On 26 February 2013 the ‘s-Hertogenbosch Court of Appeal (gerechtshof) gave judgment acquitting the applicant of all involvement in money laundering. Its reasoning included the following: “It is apparent from the information contained in the case file and the investigation at the hearing that the suspect has, by publishing advertisements on the internet and making use of bank accounts of third parties, induced the persons named in the indictment to part with sums of money (by bank transfer) without delivering what was promised in return. Such a course of action may, in the circumstances of the present case, be qualified as fraud (oplichting).” 7. On 11 April 2013 the applicant submitted a request to the Court of Appeal for compensation for the damage he claimed to have suffered as a result of his pre-trial detention (Articles 89 and 90 of the Code of Criminal Procedure (Wetboek van Strafvordering; see below)). 8. Having held a hearing in camera on 14 June 2013, the Court of Appeal gave a decision on 28 June 2013 dismissing the request. Its reasoning included the following: “It appears from the case file that the former suspect was charged with (complicity in) habitual money laundering, or in the alternative, a number of counts of (culpable) money laundering. The former suspect was acquitted on the charges by the judgment of 26 February 2013. In addition, the Court of Appeal, in its said judgment, found the following: ‘It is apparent from the information contained in the case file and the investigation at the hearing that the suspect has, by publishing advertisements on the internet and making use of bank accounts of third parties, induced the persons named in the indictment to part with sums of money (by bank transfer) without delivering what was promised in return. Such a course of action may, in the circumstances of the present case, be qualified as fraud.’ The Court of Appeal takes the view that, considering the content of the said judgment, there are no reasons in equity to award any compensation.” 9. Provisions of the Criminal Code relevant to the case are the following: “1. He who, with intent unlawfully to gain for himself or for someone else an advantage, induces someone to part with goods of any description, deliver a service, make available information, contract a debt or annul a claim, whether by assuming a false name or a false quality or by cunning tricks or a web of lies, shall be guilty of fraud and shall be punished with a term of imprisonment not exceeding four years or a fifth-category fine [i.e. up to a maximum of 78,000 euros]. ...” “1. The following shall be guilty of money laundering and punished with a term of imprisonment not exceeding four years or a fifth-category fine: a. he who conceals or dissimulates the true nature, origin, location, transfer or relocation of an object, or conceals or dissimulates the identity of the person who is entitled to an object or has it in his possession, knowing that the object constitutes the proceedings of an indictable offence (misdrijf) directly or indirectly; b. he who obtains, has in his possession, transfers, transforms or uses an object, knowing that the object constitutes the proceedings of an indictable offence directly or indirectly. 2. The expression ‘object’ shall be understood to mean all goods and all pecuniary rights.” “He who makes a habit of money laundering shall be punished with a term of imprisonment not exceeding six years or a fifth-category fine 10. Provisions of the Code of Criminal Procedure relevant to the case are the following: “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. ...” “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. ...”