Information Note on the Court’s case-law 267
October 2022
de Legé v. the Netherlands - 58342/15
Judgment 4.10.2022 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Use of bank documents, for the re-setting of a tax fine, obtained by a judicial order on pain of penalty payments, not within scope of protection of privilege against self-incrimination: no violation
Facts – In 2005 the Dutch Tax and Customs Administration obtained from their Belgian counterparts information concerning bank accounts held by residents of the Netherlands with X Bank in Luxembourg that included balances of those accounts on 21 December 1994, 5 September 1996 and 28 November 1996. The account information had been stolen from the bank and had been found in Belgium during a criminal investigation. On the basis of that information, the Dutch Tax and Customs Administration identified the applicant as one of the account holders.
In 2007 the applicant was requested by the Tax Inspector to declare any foreign bank accounts held after 31 December 1994 and submit copies of all relevant bank statements covering the period between 1 January 1995 and 31 December 2000. The applicant, however, invoked the privilege against self‑incrimination informing them that “in the given circumstances” the request for information would not be complied with.
The Tax Inspector then issued tax adjustments for the fiscal years 1995 and 1996 and imposed tax fines. The applicant’s objections thereto were dismissed, as were his appeals.
In the meantime, in intervening civil summary injunction proceedings, pending which the objection proceedings were adjourned, the provisional measures judge ordered the applicant, on pain of penalty payments, to disclose all information concerning bank accounts held abroad and to provide the required documents. In compliance with this order the applicant submitted two forms indicating that he had held a bank account at X Bank in Luxembourg as well as bank statements and portfolio summaries relating to that account.
Law –
Article 6 § 1:
(a) Admissibility –
(i) The bank statements and portfolio summaries relating to 1995 – To the extent that the applicant’s complaint of a breach of the privilege against self-incrimination concerned the tax fine for the fiscal year 1995, it could not be said that this had been based on evidence provided under coercion as he had only been ordered to the disclose information on bank accounts held after 31 December 1995.
Conclusion: inadmissible (manifestly-ill founded).
(ii) Applicability – In so far as the proceedings at issue had concerned a tax fine, they fell within the scope of Article 6 under its criminal head. The determination of the “criminal charge” against the applicant had become final through the judicial rulings on his appeals against the (re-setting of the) tax fine that had allegedly been grounded on information coerced from him. The question, however, of whether the case fell within the scope of the privilege against self-incrimination was closely connected to the merits of the applicant’s complaint.
Conclusion: Article 6 § 1 applicable.
(iii) Objection based on the lack of significant disadvantage – Although the amount of the tax fine imposed in relation to the fiscal year 1996 had been reduced after the applicant, on the basis of the judicial order, had provided the materials requested by the fiscal authorities, he had remained liable to pay the fine imposed for his failure to comply in time with his obligations under tax law. In addition, whether or not the punitive fine had been imposed in breach of the privilege against self-incrimination, it had constituted an issue of principle for the applicant. It also fell to be considered from an objective point of view, given the importance which the Court’s case-law attached to the right to remain silent and the right not to incriminate oneself.
Having regard to the above as well as the particular circumstances of the case, the Court was of the opinion that, whether or not the applicant had suffered a significant disadvantage, respect for human rights within the meaning of Article 35 § 3 (b) of the Convention required that the examination of the application be continued. The present case concerned a question of interpretation of the Court’s case-law and the Court’s ruling on the issue raised would provide national jurisdictions with guidance as to the applicability and scope of the privilege against self-incrimination.
Conclusion: preliminary objection dismissed (no significant disadvantage).
(b) Merits –
(i) General principles – The Court set out the approach taken in its case-law to the privilege against self-incrimination in general but also specifically in relation to coercion in supplying documents in the context of financial law matters. It took the opportunity to clarify the scope and application of that privilege. It summarised the approach to be taken as follows.
In order for an issue to arise from the perspective of the privilege against self-incrimination, there must be, firstly, some form of coercion or compulsion exerted on the person concerned Secondly, the person must be subjected to existing or anticipated criminal proceedings – a “criminal charge” within the autonomous meaning of Article 6 § 1 – or incriminating information compulsorily obtained outside the context of criminal proceedings was used in a subsequent criminal prosecution. These might be considered the two prerequisites for the applicability of the privilege against self-incrimination.
Where these prerequisites were met, it was necessary to determine whether the use of evidence obtained by means of coercion or compulsion should nevertheless be considered as falling outside the scope of protection of the privilege against self-incrimination. The right not to incriminate oneself was primarily concerned with respecting the will of an accused person to remain silent. When methods of coercion were used with the aim of having an accused person answer questions or make testimonial statements, either orally or in writing, the will to remain silent was clearly not respected and the privilege against self-incrimination thus applied. The privilege did not, however, extend to the use in criminal proceedings of materials obtained from an accused through methods of coercion when these materials had an existence independent of his or her will.
Where the use of documentary evidence obtained under threat of penalties in the context of financial law matters was concerned, such use did not fall within the scope of protection of the privilege against self‑incrimination where the authorities were able to show that the compulsion was aimed at obtaining specific pre-existing documents – thus, documents that had not been created as a result of the very compulsion for the purpose of the criminal proceedings – which documents were relevant for the investigation in question and of whose existence those authorities were aware. That situation was to be distinguished from “fishing expeditions”, that is, situations where the authorities attempted to compel an individual to provide the evidence of offences, he or she had allegedly committed by forcing him or her to supply documents which they believed must exist, although they were not certain of it. In that context a parallel might be drawn with testimonial evidence.
Lastly, regardless of whether or not the authorities were aware of the existence of documentary or other material evidence, if this had been obtained by methods in breach of Article 3 of the Convention, its use would always fall within the scope of the privilege against self-incrimination.
If the prerequisites for the applicability of the privilege against self‑incrimination were met, and the use of evidence obtained through coercion or compulsion fell within the scope of protection of that privilege, it was necessary to examine whether the procedure did not extinguish the “very essence” of the privilege, that is, to determine the manner in which the overall fairness of the proceedings had been affected. For that purpose, it would be necessary to have regard, in turn, to the following factors: the nature and degree of compulsion used to obtain the evidence; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained was put.
(ii) Application of the above principles to the present case – No use had been made of the forms submitted by the applicant for the imposition of the tax fine. The domestic proceedings had solely concerned the use of bank statements and portfolio summaries that had been drawn up by X Bank and related to an account of which the applicant had already been identified as an account holder. No issue thus arose as to a breach of the right not to incriminate oneself in relation to those forms.
In so far as the bank statements and portfolio summaries were concerned, first, when the applicant had been ordered to provide them on pain of penalty payments, the tax fine for 1996 had already been imposed on him. Second, although the order had not been related to the capital tax adjustment and the above tax fine in respect of which objection proceedings had been pending, those latter proceedings had been adjourned awaiting the outcome of the summary injunction proceedings. Because of this the Tax Inspector was able subsequently to make use, in the decision on the objection lodged by the applicant, of the bank statements and portfolio summaries that had been provided by the latter pursuant to the order of the provisional measures judge, and reduce the tax adjustment and the fine imposed for the year 1996.
The proceedings determining the applicant’s objection and appeals against the tax fine imposed on him fell within the scope of Article 6 under its criminal head. Further, the bank statements and portfolio summaries that had been used for re-setting the fine had been obtained from the applicant by means of compulsion, namely the order of the provisional measures judge for disclosure on pain of substantial penalty payments. Article 6 § 1 – and the right not to incriminate oneself – applied throughout the entirety of proceedings for “the determination of ... any criminal charge”, including proceedings whereby a sentence had been fixed. As such, the two prerequisites for applicability of the privilege against self‑incrimination had been met.
Nonetheless, in the circumstances of case, the use of those documents did not fall within the scope of the protection provided by that privilege. They had been pre-existing documents which the authorities had been aware of since it had already been established that the applicant had held a bank account in Luxembourg at the relevant time. It could therefore not be said that the authorities had engaged in a “fishing expedition” when they had instituted summary injunction proceedings seeking an order for the applicant to submit certain documents in relation to that account. Moreover, the order issued had specifically indicated what documents the applicant had to supply. The present case could thus be distinguished from the cases of J.B. v. Switzerland and Chambaz v. Switzerland in which “all documents” had been sought. Lastly, the imposition of penalty payments which the applicant would have incurred if he had failed to comply with the order could not amount to treatment in breach of Article 3 of the Convention.
There was, therefore, no reason for the Court to examine the manner in which the overall fairness of the proceedings had been affected.
In the light of the foregoing considerations, due to the use of the aforementioned documents, the applicant had not been deprived of a fair trial.
Conclusion: no violation (unanimously).
(See also Funke v. France, 10828/84, 25 February 1993, Legal summary; Saunders v. the United Kingdom [GC], 19187/91, 17 December 1996, Legal summary; J.B. v. Switzerland, 31827/96, 3 May 2001; Phillips v. the United Kingdom, 41087/98, 5 July 2001; Jalloh v. Germany [GC], 54810/00, 11 July 2006, Legal summary; O’Halloran and Francis v. the United Kingdom [GC], 15809/02 and 25624/02, 29 June 2007, Legal summary; Chambaz v. Switzerland, 11663/04, 5 April 2012; Eklund v. Finland (dec.), 56936/13, 8 December 2015)
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This summary by the Registry does not bind the Court.
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