Komentarz (w j. angielskim) autorstwa Sylwii Kamińskiej do wyroku Geerings v. The Netherlands,  którym Trybunał uznał naruszenie art. 6 ust. 2 Europejskiej Konwencji Praw Człowieka regulującego zasadę niewinności.

The proceedings of Geerings v The Netherlands is essential for the purpose of art.6-2 ECHR, the presumption of innocence. The case was decided in 2007 by the Strasbourg’ court and the general implication reiterates on the confiscation measure imposed on the ill-gained assets. Firstly, the facts of the case and the claim brought by the applicant against the Netherlands will be presented. Secondly, the proceedings before national courts general implications and considerations will be offered, as to emphasize the main triggers arising from the case. Thirdly, the legal analysis of the ECHR provision at stake will be examined. Finally, the concluding remarks will be presented and assessed in the light of the context of the case. The most difficult conundrum will be particularly reiterated.

Starting with the facts of the case, Mr Geerings, the applicant was arrested and placed in the pre-trial detention on suspicion of involvement in attempted thefts of lorries with household appliances. In the course of proceedings, he was finally sentenced to 5 years imprisonment upon which he failed an appeal. In the meantime, the confiscation order was issued against the assets owned. Upon the appeal, the applicant was acquitted from some of the charges. However, he was acquitted only from these charges that could not by fully proved. The applicant claimed that due to acquittal from part of the charges, the confiscation order shall be adjusted accordingly. However, the confiscation order was not changed. At this stage, the consideration of art.6-2 arose.

What was argued by the Dutch court of appeal is that even though, he was acquitted from the charges made, the causal link between the offence (and the advantage derived from it) is more liberal and loose that the one needed to be established to prove the charges. Further, according to the Supreme Court (Hoge Raad) the confiscation order ‘does not constitutes a penalty but a measure aimed at depriving the person of the illegally obtained advantage’. Hence, such a requirement are less strict than the requirements needed to be fulfilled for the criminal law penalty (e.g. imprisonment). Moreover, according to the Supreme Court ‘offences included in the criminal charge that have resulted in an acquittal can still form the basis for the imposition of a confiscation measure’. It is worth to introduce the brief overview of the confiscation legislation for the purpose of this discussion.

The amendments of the confiscation regulations in the Netherlands (1993) 1)  introduced the exercise of confiscation order as disconnected from the criminal law framework.2)  For the purely illustrative reason I shall emphasize that statistics indicated poor result of the execution of the confiscation, notwithstanding from the high number of the confiscation orders issued (research conducted in 1995-2001).3)  Implying that, once the confiscation measures occurs outside the framework of criminal law, the threshold held to be lowered considerably, because criminal law standards ceased to apply. This is what the Hoge Raad accordingly professed. Moreover, a rather twofold aim of the confiscation measure was defended. It was stated by the Supreme Court that  ‘the confiscation order procedure is not designed or intended to determine a criminal charge or a criminal penalty, but to detect illegally obtained proceeds(…)’.4)  Therefore, in the strict sense the sole idea of the need of assets recovery was upheld .5) Confiscation measure reflected rights in rem, rather than in personam. Summarizing, the rules of evidence that apply in criminal proceedings, as set out in the code of criminal procedure, are not applicable to the confiscation order. 6)

Based on the abovementioned, it is art.6-2 ECHR that was at stake: ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ 7) Accordingly, art.6-2 may only be potentially breached if there is a criminal charge against the person, thus it was applicable to the case at stake. Whereas there is no doubt that art.6-2 applies to criminal proceedings, it is not certain whether it safeguards rights outside the criminal framework8) , as it is presented in Geerings. Implying that, it is inevitable to assess what was the purpose and nature of the national measure at stake. Accordingly, art.6-2 has no application insofar as there is no ‘new charge’ within the confiscation measure imposed on the offender. The sole confiscation order, if decided by the court, that does not amount to ‘new charges’ – find no application of art.6-2 and consequently this procedural standard does not apply.

Concluding, the ECtHR found the violation of art. 6(2) against Mr Geerings. In a similar case of Phillips vs UK (2001) breach of art.6-2 was not found, taking full account on the national classification of the confiscation measure under national law. The Geerings case must be however deliberately distinguished from other similar confiscation measure cases because in Geerings; the applicant was tried and subsequently acquitted. The passage of the case must be read with great cautions, because it implies limited application of art.6-2. Thus, provision could only trigger if there was to be ‘new charge’ coming along the confiscation order. Patently, if a measure is has a punitive nature, ‘new charge’ prerequisite is more probable to be fulfilled. Most importantly, the passage from this case indirectly allows the scenario in which the re-classfication of national legislation would influence the potential obedience or breach of provision of the ECHR. Thus, the possible application of art.6-2 in assets confiscation would be strictly confined to established classification in certain legal system, not to mention classification of twofold nature. Accordingly, if a confiscation order is not to be categorized under the punitive head, the procedural safeguards of criminal law automatically cease to affect the appellant. Subsequently, the human rights standard is put at risk to be lowered through the re-classifying national mechanisms.