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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE NETHERLANDS - 3894/68 [1969] ECHR 23 (15 December 1969) URL: http://www.bailii.org/eu/cases/ECHR/1969/3894_68.html Cite as: [1969] ECHR 23

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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