CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1994

.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 }                      AS TO THE ADMISSIBILITY OF                       Application No. 22078/93                     by N.D.                     against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 6 April 1994, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           MM.   F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY             Mr.   K. ROGGE, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 7 May 1993 by N.D. against the Netherlands and registered on 17 June 1993 under file No. 22078/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch national, born in 1955, and currently resides at Kensington, Maryland, USA. Before the Commission he is represented by J.C. Houtappel, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 15 January 1986 a fire ravaged five buildings in Willemstad, Curaçao, the Netherlands Antilles, among which the "Al Panino" building owned by the applicant and his family. The building was mortgaged at the Maduro & Curiëls Bank and was insured against fire and commercial losses as a result of fire by the insurance company Fatum. An investigation as to the cause of the fire was made by the police and inspectors of Fatum. As the circumstances appeared rather suspicious (traces and declarations by the fire brigade and witnesses indicated that the fire had started in the part of the building which was in use by the applicant, there were several seats of the fire, there were a number of explosions and the fire seemed to have been lit intentionally) and as it appeared that the applicant found himself in financial difficulties and had substantively increased the insured amount shortly before the fire, the applicant was arrested on the suspicion of arson and detained in police custody. At some later point in time the prosecution authorities conditionally dropped the arson charges against the applicant for lack of evidence.        The Maduro & Curiëls Bank, as mortgage holder and therefore entitled to receive a part of a possible payment under the applicant's fire insurance policy, on 22 August 1986 started civil proceedings against Fatum claiming payment under the fire insurance policy. Fatum contested this claim, alleging that the applicant was responsible for the fire by having committed arson. The prosecution authorities allowed Fatum to make use of documents on the investigation of the fire by the police in these civil proceedings. Following interlocutory judgments of 22 February 1988, 15 August 1988 and 6 November 1989, the Court of First Instance (Gerecht in eerste aanleg) of Curaçao in its judgment of 25 June 1990 found in favour of Fatum.        The appeal by Maduro & Curiëls Bank was rejected by the Netherlands Antilles and Aruba Court of Appeal (Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en Aruba) on 18 December 1990. The subsequent appeal in cassation by the Maduro & Curiëls Bank was rejected by the Supreme Court (Hoge Raad) on 19 June 1992.        On 14 October 1988 the applicant started civil proceedings against Fatum for his share in the insurance claim. Following an interlocutory judgment of 5 June 1989, the Court of First Instance, in its decision of 20 August 1990, rejected the applicant's claim. The Court considered, inter alia, that the circumstantial evidence as established in the proceedings between the Maduro & Curiëls Bank and Fatum had remained irrefuted. It accepted that the applicant bore a certain responsibility for the fire, which entailed that all his claims must be rejected ("omdat ons vermoeden als niet weerlegd geldt staat vast dat Noah Dan merkelijke schuld treft aan de brand en dit brengt met zich dat alle vorderingen van Noah Dan moeten worden afgewezen").          The applicant's appeal was rejected on 25 June 1991 by the Netherlands Antilles and Aruba Court of Appeal, which upheld the judgment of 20 August 1990. It was noted in the judgment that the applicant did not dispute the facts as established in the case between the Bank and Fatum as a starting point for the examination of the case between himself and Fatum.        The applicant's appeal in cassation was rejected by the Supreme Court on 11 December 1992. Insofar as the applicant complained about the Court of Appeal's finding in favour of Fatum on the basis of the assumption that the applicant was to a certain extent responsible for the fire ("merkelijke schuld") in view of the circumstantial evidence, the Supreme Court noted that the Court of Appeal's assumption was based on reasonable grounds and that the Court of Appeal's findings, after having assessed the evidence, were understandable and consistent. The Supreme Court further considered it could not examine complaints made in the cassation appeal relating to the Court of Appeal's assessment of the evidence as this belongs to the competence of the trial courts.     COMPLAINTS        The applicant complains under Article 6 paras. 1 and 2 of the Convention that he did not receive a fair trial in the civil proceedings he started against Fatum. He claims in particular that the domestic courts presumed him guilty of arson although no criminal proceedings had been brought against him for lack of evidence, whilst the same presumption was also made in the proceedings between the Maduro & Curiëls Bank and Fatum in which he was not even a party and thus unable to defend himself against the presumption. He also complains that the domestic courts failed to use in evidence certain expert reports and accepted the evidence submitted by Fatum. He submits that his case should have been decided first, i.e. before the proceedings between the Maduro & Curiëls Bank and Fatum had been decided.        The applicant finally complains under Article 8 of the Convention that the public prosecutor handed over police reports of the fire to Fatum, which used them in the civil proceedings to support its claims.     THE LAW   1.    The applicant complains that the presumption of innocence was not respected in the civil proceedings he started against Fatum. He relies in this respect on Article 6 para. 2 (Art. 6-2) of the Convention which provides that:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."        The Commission observes that the proceedings at issue were of a civil nature and that they did not involve any determination of a criminal charge to which the presumption of innocence would have applied, nor that they have been shown to have had any influence on any criminal proceedings against the applicant.        However, despite the wording of Article 6 para. 2 (Art. 6-2) of the Convention, which secures the presumption of innocence to "everyone charged with a criminal offence", this provision has been consistently interpreted as also applying to situations where the person concerned is not or no longer formally charged with a criminal offence (eg. Eur. Court H.R., Minelli judgment of 15 March 1983, Series A no. 62, pp. 15 - 16, para. 30). The presumption of innocence is to be observed not only by the criminal court trying a case, but also by other public authorities, including courts other than those which are competent to determine a criminal charge (cf. Allenet de Ribemont v. France, Comm. Report 12.10.93, paras. 66-67).        The Commission recalls that a distinction must be made between civil proceedings and criminal proceedings arising out of the same events. By virtue of the different standards of proof normally observed in such proceedings, acquittal at the end of a criminal trial, because the accused has not been shown guilty of an offence beyond all reasonable doubt, does not necessarily preclude that same person's civil liability on the balance of probabilities (No. 11882/85, Dec. 7.10.87, D.R. 54 p. 162).        The Commission observes that in the present case the civil trial courts did not express themselves on the question whether or not the applicant had committed arson. The domestic courts merely found that that the applicant bore a certain responsability for the fire, which must be distinguished from the question whether or not he was guilty of a criminal offence.        It follows that this aspect of the applicant's case is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant states that the domestic courts have violated Article 6 para. 1 (Art. 6-1) of the Convention by failing to use in evidence certain expert reports and accepting the evidence submitted by Fatum. He further submits that his case should have been decided first, i.e. before the proceedings between the Maduro & Curiëls Bank and Fatum had been decided.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:        "In the determination of his civil rights and obligations      (...), everyone is entitled to a fair (...) hearing (...)      by a (...) tribunal (...)."        The Commission recalls that, according to its constant case- law, the evaluation of evidence is a matter which necessarily comes within the appreciation of the independent and impartial courts and cannot be reviewed by the Commission unless there is an indication that the judge has drawn grossly unfair or arbitrary conclusions from the facts before him. The task of the Convention organs is not to interfere with the legal assessment of a particular claim made by the competent courts under the domestic law, but rather to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (cf. No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31; No. 10000/82, Dec. 4.7.83, D.R. 33 p. 247; No. 10153/82, Dec. 13.10.86, D.R. 49 p. 67).        The Commission finds no indication in the case-file that the applicant's rights have been disrespected in the civil proceedings at issue. He has been given every opportunity to adduce material he considered relevant and to challenge the material submitted by Fatum and the courts' findings in the related case between the Maduro & Curiëls Bank and Fatum. As was noted by the courts, the applicant did not dispute the facts as established in the case between the Bank and Fatum as a starting point for the examination of the case between himself and Fatum. The Commission finally notes that the applicant was free to assist the Maduro & Curiëls Bank in their proceedings against Fatum, having regard to the fact that they shared a common interest, i.e. the payment by Fatum of the insurance claim.        The Commission therefore finds that, insofar as the applicant did raise his present complaints before the domestic courts, there is no indication that he did not receive a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows that this complaint must also be rejected under Article 27 para. 2 (Art. 27-2) of the Convention as manifestly ill-founded.     3.    The applicant finally complains under Article 8 (Art. 8) of the Convention that the public prosecutor handed over police reports of the fire to Fatum.        The Commission notes that the applicant, insofar as he has substantiated this complaint, did not raise it, either in form or in substance, during the domestic proceedings.        The Commission, therefore, finds that in this respect the applicant has failed to exhaust domestic remedies within the meaning of Article 26 (Art. 26) of the Convention and that this complaint must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber          (K. ROGGE)                         (S. TRECHSEL)