CASE OF BOK v. THE NETHERLANDS
Preliminary objection dismissed (victim);No violation of Art. 6-2
Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
6. 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). 7. 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. 8. The Mercedes car seized on 21 March 1995 was sold at a public auction on 11 July 1997. 9. 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). 10. 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. 11. 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. 12. On 3 March 1999, the proceeds of the sale of the Mercedes car plus accrued statutory interest were paid to the applicant. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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 crossappeal (incidenteel beroep). 18. 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].” 19. 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. 20. 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. ...” 21. 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: “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.” “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.” 22. 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. 23. 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. 24. 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: “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. ...” “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. ...” “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. ...” 25. 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).” 26. 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. 27. 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. 28. 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. 29. 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). 30. 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]....”