CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 décembre 1969

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the applicant may be summarised as follows:   The applicant is a Dutch citizen, born in 1924 and resident in Amsterdam. He is represented by Mr S, lawyer practising in Amsterdam and acting under an undated power-of-attorney.   From statements and from documents submitted it appears on .. November 1966 that the applicant was adjudicated bankrupt by decision of the Amsterdam District Court (Arrondissementsrechtbank). Subsequently he was charged with two counts of having spent money to the detriment of his creditors. Count II of the charge which is alone in issue in the present case reads as follows:   On or about 17 and 18 November 1966, in any event, on or about 24 and 25 November 1966, in any case during or about the period from 16 November to 1 December 1966 in Amsterdam while having been declared by the Second Chamber of the District Court in Amsterdam as being in a state of bankruptcy, which state of bankruptcy had not been set aside or otherwise terminated, in order fraudulently to frustrate the rights of his creditors having paid on the occasion of the above bankruptcy or at a time when he knew that bankruptcy could not be avoided to his creditor A W Vredeveld and his creditor A M Van Buringen in settlement and payment of his debts, an amount of 3000,- guilders and an amount of 2500 guilders respectively, in any case sums of money, and having thereby   granted preferences to these to these creditors". (emphasis added). ("ob of omstreeks 17 et 18 november 1966, althans of omstreeks 24 en 25 november 1966, in ieder geval in of omstreeks de periode 16 november tot 1 december 1966 te Amsterdam, terwijl hij bij vonnis van de Arrondissementsrechtbank te Amsterdam, Tweede Kamer van 15 november 1966 in staat von faillissement was verklaard, welke staat von faillissement toen niet was opgeheven of op andere wijze was geeindigd, ter bedriegelijke verkorting van de rechten zijner schuldeisers, ter gelegenheid van genoemd faillissement of op een tijdstip, waarop hij wist dat het faillissement niet kon worden voorkomen, aan zijn schuldeissres A W Vredeveld en zijn schuldeiser A M Van Buringen, in aflossing op of betaling van zijn schulden, respectievelijk een bedrag van F. 3000,- en een bedrag van F. 2500,- in ieder geval geldsbedragen, heeft betaald en aldus die schuldeiser(s) heeft bevoordeeld").   On April 1967 the matter came before the District Court in Amsterdam which acquitted him of the first count but convicted him of the above charge. The application was sentenced to four months' imprisonment.   Both he and the Public Prosecutor's Office then lodged with the Court of Appeal (Gerechtshof) in Amsterdam an appeal (Hoger Beroep) against conviction and sentence and acquittal respectively. Apparently the applicant alleged that he had not been informed in clear terms of the charges preferred against him by the prosecution. In this respect he referred to the passage in the indictment under II by which he was charged with having paid moneys "on the occasion of the above bankruptcy or at a time when he knew that bankruptcy could not be avoided". He explained that it was not clear from the charge whether the alleged offenses had been committed when bankruptcy proceedings had already been opened or prior thereto at a time when he knew or should have known that bankruptcy was unavoidable. He alleged, invoking inter alia Article 6, paragraph (1), of the Convention, that both positions required a different defence and that consequently he had not been properly informed of the charges against him.   On .. February 1968 the Court of Appeal confirmed the lower court's acquittal under count I and set aside the conviction and sentence under count II. At the same time the Court itself convicted the applicant for fraudulent bankruptcy (bedriegelijke bankbreuk) in accordance with the charge preferred against him under count II and sentenced him to four months' imprisonment. It held that it was clear from the said charge in the indictment that it must be read as referring to acts committed "on the occasion of the above bankruptcy, in any event at a time when he knew that bankruptcy could not be avoided" ("ter gelegenheid van genoemd faillissement, althans op een voorkomen"). The Court explained that it was the clear intention to set up two alternative periods which excluded one another, namely:   primarily during the bankruptcy proceedings and secondarily during a period preceding the opening of such proceedings. As to the alleged inconsistency with the requirement of Article 6, paragraph (1), of the Convention, the Court of Appeal held that this provision was not applicable in the present case. It pointed out that the indictment indicated in clear terms the nature of the charge that was preferred against the applicant by stating that, while being in a state of bankruptcy, he had paid moneys to two creditors "in order fraudulently to frustrate the rights of his creditors on the occasion of the above bankruptcy" ("ter bedriegelijke berkorting van de rechten zijner crediteuren ter gelegenheid van genoemd faillissement").   The applicant then lodged with the Supreme Court (Hoge Raad) a further appeal (Beroep in Cassatie) against his conviction and sentence. He alleged again, inter alia, a violation of Articles 1 and 6 of the Convention and, in particular that he had not been properly informed of the charges against him. That Supreme Court rejected his appeal on .. June 1968 holding that the Court of Appeal had been justified in finding that the charge preferred against him.   The applicant now complains that he was wrongly convicted and sentenced and that he had not been informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. He explains that, on 17 November 1966 he had not been aware of the decision opening bankruptcy proceedings against him which had been taken from the text of the indictment that the offenses were alleged to have been committed either during bankruptcy or prior thereto was unavoidable. Both cases were different and required a different line of defence. It could not have been expected that the Court of Appeal would interpret the indictment to mean that the words used constituted a primary and a secondary alternative.   He alleges violations of Articles 1, 6 and 13 of the Convention. He also requests damages.   THE LAW   Whereas, in regard to the applicant's complaints concerning his conviction and sentence, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and especially in the Articles invoked by the applicant;   Whereas, in respect of the judicial decisions complained of, the Commission has frequently stated that in accordance with Article 19 (Art. 19) of the Convention its only task is to ensure observance of the obligations undertaken by the Parties in the Convention; whereas, in particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where the Commission considers that such errors might have involved a possible violation of any of the rights and freedoms limitatively listed in the Convention;   Whereas, in this respect, the Commission refers to its decisions Nos. 458/59 (X. v. Belgium, Yearbook, Vol. III, p. 233) and 1140/61 (X. v. Austria - Collection of Decisions, Vol. 8, p. 57); and whereas there is no appearance of any such violation in the present case; whereas it follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas the applicant further complains that Article 6, paragraph (1) (Art. 6-1), of the Convention has been violated by reason of the court proceedings concerned; whereas he alleges, in particular, that he had not been informed in detail, and in a language which he understood, of the nature and cause of the accusation against him;   Whereas the Commission had regard to Article 6, paragraph (3) (a) (Art. 6-3-a), of the Convention, which guarantees to everyone charged with a criminal offence "to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him";   Whereas the Commission finds that the indictment in the present case stated clearly what charge was preferred against the applicant and indicated in clear terms the facts that have been considered by the prosecuting authority as amounting to the offence of fraudulent bankruptcy;   Whereas, consequently, an examination of the case as it has been submitted does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and, in particular, in Article 6 (Art. 6); whereas it follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas, in regard to the remainder of the applicant's complaints, the Commission equally finds that an examination of the case as it has been submitted, including an examination made ex officio, fails to disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Articles 1 and 13 (Art. 1, 13);   Whereas it follows that this part of the application is also manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE