Rachid BOUSANA v the Netherlands - 21167/08 [2010] ECHR 1013 (25 May 2010)

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The European Court of Human Rights (Third Section), sitting on 18 May 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

The applicant, Mr Rachid Bousana, who has both Dutch and Moroccan nationality, was born in 1978 and lives in Amsterdam. He was represented before the Court by Mr P. Plasman, a lawyer practising in Amsterdam.

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

On 2 November 2004 the applicant was placed in pre-trial detention on charges of participating in a criminal organisation with intent to commit acts of terrorism (lidmaatschap van een criminele organisatie met terroristisch oogmerk), namely the so-called “Hofstad group” (Hofstadgroep), from its being based in the town of The Hague which is the place of residence of the Queen (Hofstad, town where the royal residence is located).

During a hearing held on 22 December 2005 the pre-trial detention was lifted, the Rotterdam Regional Court (rechtbank) considering there were no grounds for it to be continued.

On 25 January 2006 the public prosecution service (Openbaar Ministerie) demanded a sentence of 21 months' imprisonment based on the charges as described above with deduction of the time spent in pre-trial detention.

On 10 March 2006 the Rotterdam Regional Court acquitted the applicant of all charges brought against him, finding that he could not be considered an active participant in the Hofstad group. In a number of cases of the applicant's co-defendants similar acquittals were pronounced. The public prosecution service did not appeal against that judgment and on 24 March 2006 the Regional Court's judgment became final.

Claiming that he had incurred damage as a consequence of the 414 days he had spent in pre-trial detention, the applicant filed a request for compensation on 20 June 2006 pursuant to the provisions of article 89 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering – “CCP”) which provides for the possibility of such compensation. Article 90 CCP provides, in the relevant part and as regards the compensation described in article 89 CCP, that “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 (gronden van billijkheid) to do so.”

The applicant claimed 209,665.45 euros (EUR) in damages to cover both pecuniary and non-pecuniary damage.

By decision of 7 November 2006 the Rotterdam Regional Court granted the applicant's claim in part, to the amount of EUR 64,312.50.

On 20 November 2006 the public prosecution service appealed against that decision, arguing that there were no grounds in equity to award any damages. In the alternative, the public prosecution service asserted that the applicant should be awarded less.

On 8 November 2007 the Court of Appeal (gerechtshof) of The Hague quashed the Regional Court's decision.

The Court of Appeal noted that the applicant was one of the acquitted suspects in the criminal case against members of the Hofstad group, and that the members of this group were known to frequent circles close to Mohamed B., the murderer of film director Theo van Gogh: the members of the Hofstad group and Mohamed B. would gather in what has come to be called the “living-room meetings” (huiskamerbijeenkomsten). As regards those meetings, it had been established that they had taken place in a group setting and that all suspects could be counted as members of that group.

Paraphrasing the Regional Court's acquittal of 10 March 2006 referred to above, the Court of Appeal observed that the Regional Court had found that all persons suspected of membership of the Hofstad group had in fact belonged to a structured and durable joint co-operation which had had the intent to commit crimes, to incite (violence) and to threaten (with the commission of acts of terrorism) and had established that the group's individual members generally could not have been unaware that the objectives of the group to which they belonged was to commit crimes of this nature.

It then went on to consider that the reason for the applicant's acquittal of criminal participation in the group's activities, despite the above-mentioned finding of fact by the Regional Court, was to be found in the circumstance that the Regional Court had not considered the applicant to have been an “active” participant in the organisation. In this connection, the Court of Appeal quoted parts of the Regional Court's judgment of 10 March 2006:

“Although all suspects are to be deemed members of the [Hofstad] group, not all of them behaved in such a manner that the group in fact benefited from their membership. Some of them merely tagged along. Those members did, for instance, attend meetings where hatred was incited and which were of an incendiary nature, but they did not contribute to any of that themselves. They also received texts and files of a threatening nature, but did not put them to any use. By behaving in such a manner, these members neither directly nor indirectly aided the realisation of the group's criminal intent. It follows that activities such as attending aforementioned meetings and receiving aforesaid texts cannot be deemed as [criminal] acts of participation [in the Hofstad group's activities] (deelnemingshandelingen).

The Court of Appeal went on to hold that this admitted of no other conclusion than that the applicant had taken part in the organisation in the above-mentioned passive manner, in full knowledge of the group's aims, not merely on an incidental basis but moreover without distancing himself from those aims.”

Having taken these circumstances into consideration, the Court of Appeal found that there were no reasons in equity to award the applicant the damages he sought.

The applicant complained under Article 6 § 2 of the Convention about a violation of his right to be presumed innocent until proved guilty.

The applicant complains that the reasons underpinning the Court of Appeal's decision of 8 November 2007 violate the principle of the presumption of innocence as laid down in Article 6 § 2 of the Convention, which reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The applicant argued that the Court of Appeal in its decision of 8 November 2007 had given its own interpretation of the Regional Court's earlier acquittal. He prayed in aid the Court's judgments in the cases of Rushiti v. Austria (no. 28389/95, 21 March 2000) and Sekanina v. Austria (25 August 1993, Series A no. 266-A). In his submission, the Court of Appeal had held passive participation in a criminal organisation against him, which amounted to a finding of guilt, without him having in fact been convicted of participation in a criminal group. The applicant contended that the Regional Court had acquitted him on the ground that it was not established that he had committed the necessary acts of participation (deelnemingshandelingen) for which reason the elements of the offence with which he was charged, as defined in the CCP, (delictsomschrijving), were not fulfilled. Moreover, the Court of Appeal, which had not decided on the facts and, therefore, had no thorough knowledge of the case, had given its own interpretation of the acquittal. The applicant summarised the Court of Appeal's finding as follows: passive participation was established for which reason guilt on the part of the applicant was found even though he had not committed any acts constituting participation in the criminal offence.

The Court reiterates 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, amongst many authorities, Sekanina v. Austria, cited above, § 25, and Leutscher v. the Netherlands, 26 March 1996, § 29, Reports of Judgments and Decisions 1996-II). Nevertheless, a decision to refuse reimbursement of costs or compensation for lawful pre-trial detention may raise an issue under Article 6 § 2 of the Convention if supporting reasons amount in substance to a determination of the guilt of the former accused without his having previously been proved guilty according to law (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, § 37). Moreover, once an acquittal has become final the voicing of any suspicions of guilt, including those expressed in the reasons for the acquittal, is incompatible with the presumption of innocence (see Rushiti, cited above, § 31).

The Court notes that the applicant in the present case was acquitted of all charges by final judgment of 10 March 2006. It further observes that in the impugned decision, the Court of Appeal, having quoted relevant sections from the acquittal, merely reiterated a number of the acquitting court's considerations. While it noted that the Regional Court had found that the applicant had indeed participated in the Hofstad group, the Court of Appeal also expressly acknowledged that that participation had not been found to be “active”, such as would justify finding the applicant guilty of the criminal offence with which he had been charged. Based on those considerations, to which the Court of Appeal confined itself, it concluded that there were no reasons in equity to award the applicant any damages.

The Court fails to see how the Court of Appeal's reasoning – repeating, as it did, the reasons for the applicant's acquittal – can be considered as amounting to a finding of guilt or a voicing of suspicions against the applicant.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Rachid BOUSANA v the Netherlands - 21167/08 [2010] ECHR 1013 (25 May 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1013.html Cite as: [2010] ECHR 1013