Communicated on 24 November 2017
THIRD SECTION
Application no. 58342/15
Levinus Adrianus DE LEGÉ
against the Netherlands
lodged on 19 November 2015
STATEMENT OF FACTS
1. The applicant, Mr Levinus Adrianus de Legé, is a Netherlands national, who was born in 1934 and lives in Campello (Spain). He is represented before the Court by Mr M. Hendriks, a lawyer practising in Nijmegen.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant and his wife were Netherlands residents until the year 2000 when they moved to Spain.
1. Background to the case
4. The Netherlands Tax and Customs Administration (Belastingdienst) obtained from their Belgian counterparts the names of Netherlands taxpayers who held accounts in a bank based in Luxembourg. The applicant’s name was among these. The account information had been stolen from the bank. It had been found in Belgium in the course of a criminal investigation.
5. The information identified the applicant as an account holder but did not state the balance of his account.
6. The Grand Duchy of Luxembourg had bank secrecy laws at the relevant time. These prevented the passage by lawful means of information relating to accounts held with banks based in that country to foreign tax authorities except with the cooperation of the account holders themselves.
2. The correspondence phase
7. On 7 March 2007 the Tax and Customs Administration wrote to the applicant stating that it had come to their notice that the applicant had held bank accounts abroad which he had not accounted for in his income tax (inkomstenbelasting) and property tax (vermogensbelasting) returns. The applicant was required to declare his foreign bank accounts and submit copies of all relevant bank statements covering the period between 1 January 1995 and 31 December 2000.
8. On 28 March 2007 the applicant replied in writing. As relevant to the case before the Court, he observed that it was “sufficiently known” that letters such as that of 7 March 2007 would be followed by tax demands which included an administrative fine (bestuurlijke boete). Since, consequently, Article 6 of the Convention under its criminal head was applicable, he invoked the privilege against self-incrimination relying on Saunders v. the United Kingdom, 17 December 1996, Reports of Judgments and Decisions 1996‑VI and J.B. v. Switzerland, no. 31827/96, ECHR 2001‑III. The information in issue was such that the Tax and Customs Administration could not obtain it without the applicant’s cooperation; it was not even established that that information even existed. Accordingly, “in the given circumstances” the request for information could not be complied with.
9. On 22 November 2007 the Tax and Customs Administration wrote to the applicant informing him that it possessed information identifying him as the holder of one or more accounts with a bank based in Luxembourg. It notified the applicant of its intention to impose a tax adjustment (naheffing) for the year 1995 based on entirely conjectural figures, together with a fine in an amount of 100% of the tax assessed. The applicant was invited to submit a reaction; if he provided complete information before the final tax adjustment was imposed, the fine would in principle be set at 50% of the tax due.
10. It would appear that the applicant did not respond to the letter of 22 November 2007 in the terms requested. Tax adjustments were imposed for the years 1995 and 1996 on 28 December 2007.
3. The objection proceedings
11. On 21 January 2008 the applicant lodged an objection against the tax adjustment for 1996 based on the lack of convincing evidence that he had in fact held a bank account in Luxembourg.
12. It would appear that the applicant, or his representative, was allowed to see redacted documents purporting to prove the existence of the bank account or accounts in issue.
13. On 26 March 2008 the applicant lodged an objection (bezwaar) against the tax adjustment for 1995 – which had reached him after the adjustment for 1996 – based, as relevant to the case before the Court, on the alleged lack of evidentiary value of the documents relied on by the Tax and Customs Administration given that the provenance of these documents was unclear and the documents themselves had been so heavily redacted as to be meaningless.
4. Intervening civil proceedings
14. The Tax and Customs Administration summoned the applicant to appear before the provisional measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague in summary injunction proceedings (kort geding). The purpose was to obtain an order for the applicant to disclose all information concerning bank accounts held abroad.
15. The provisional measures judge gave judgment on 27 November 2008. The applicant was ordered to disclose the information specified within fourteen days from the day on which the judgment was served on him, on pain of a penalty payment (dwangsom) of 5,000 euros (EUR) for each day or part of a day thereafter that he failed to comply up to a maximum of EUR 50,000. The judgment was provisionally executable (uitvoerbaar bij voorraad).
16. The applicant complied with this order and disclosed the information demanded within the time-limit set.
5. Resumption of the main tax proceedings
(a) Resumption of the objection proceedings
17. On 6 April 2009 the Tax and Customs Administration gave a decision declaring the applicant’s objection of 26 March 2008 (paragraph 13 above) inadmissible on formal grounds not relevant to the case before the Court but nonetheless considering it as a request to review the tax adjustment for the year 1995 ex officio (ambtshalve). Since it appeared from the information submitted by the applicant (paragraph 16 above) that the conjectural figures on which the original assessment had been based (paragraph 9 above) were too high, they were reduced to the actual figures and the tax payable by the applicant was adjusted accordingly. The fine was set at 100% of the tax due.
18. Also on 6 April 2009 the Tax and Customs Administration gave a decision dismissing the applicant’s objection of 21 January 2008 (paragraph 11 above), similarly reducing the conjectural figures for the year 1996 to the correct levels and adjusting the tax payable accordingly. Given that information had been submitted after the judgment of the provisional measures judge, the fine was set at 75% of the tax due.
(b) Appeal proceedings
19. The applicant lodged an appeal (beroep) against both decisions with the Tax Division (belastingkamer) of the Breda Regional Court. As relevant to the case before the Court, he protested against the use of the information which he had submitted in accordance with the order of the provisional measures judge (see paragraph 15 above) for purposes of setting the fine. He relied on Saunders and J.B. v. Switzerland, both cited above.
20. In two decisions of 26 July 2010 that for present purposes were based on identical reasoning the Regional Court found that the “reasonable time” requirement contained in Article 6 § 1 of the Convention had been violated. It accordingly reduced the fines by a small amount. It dismissed the appeals for the remainder.
(c) Further appeal proceedings
21. The applicant lodged further appeals (hoger beroep) against the Regional Court’s decisions with the Tax Division (belastingkamer) of the ‘s-Hertogenbosch Court of Appeal (gerechtshof).
22. The Court of Appeal gave a single decision deciding both appeals on 19 December 2013. It further reduced the fine because of the length of the proceedings but dismissed the appeals for the remainder. As relevant to the case before the Court, its reasoning included the following quotation from a judgment of the Supreme Court (Hoge Raad) (12 July 2013, ECLI:NL:HR:2013:BZ3640[1]):
“In [Saunders v. the United Kingdom] the Court has held that the prohibition on forced self-incrimination is connected with the right to remain silent, which means that this prohibition does not extend to the use in criminal proceedings of evidence that, although obtained under duress, has an existence independently of the will of the accused (hereafter: will-independent material). It does not appear from the Court’s later case-law that this point of view has been abandoned. This means that obtaining will-independent material by means of an order given in summary injunction proceedings does not constitute a violation of Article 6 of the Convention, even if that order is accompanied by penalty payments.
3.7. In so far as it concerns evidentiary material the existence of which is dependent on the will of the taxpayer (hereafter ‘will-dependent material’), the following applies. The principle is that the surrender of such material may be coerced for purposes of levying tax. If it cannot be excluded that the material will also be used in connection with a ‘criminal charge’ (compare [J.B. v. Switzerland]), the domestic authorities will have to ensure that the taxpayer will be able to exercise effectively his right not to cooperate in self-incrimination. Since regulation directed to this end is lacking in the Netherlands, it is for the courts to provide the necessary guarantees.”
(d) Appeal proceedings on points of law
23. The applicant lodged an appeal on points of law (cassatie) with the Tax Division of the Supreme Court. As relevant to the case before the Court, he again relied on the privilege against self-incrimination, relying on Article 6 of the Convention. He cited Funke v. France, 25 February 1993, Series A no. 256‑A; J.B. v. Switzerland; Marttinen v. Finland, no. 19235/03, 21 April 2009; and Chambaz v. Switzerland, no. 11663/04, 5 April 2012.
24. In his advisory opinion (conclusie), the Procurator General (procureur-generaal) expressed the view, on the basis of the case-law of the Court and on domestic case-law and doctrine, that the documents submitted by the applicant in obedience to the order of the provisional measures judge could not be used for purposes of setting the tax fine. Citing Furcht v. Germany, no. 54648/09, 23 October 2014, he recommended that they be excluded as evidence.
25. The Supreme Court gave judgment on 29 May 2015 dismissing the applicant’s appeal on points of law. As relevant to the case before the Court, its reasoning included the following (domestic case-law references omitted):
“2.3.3. In [Saunders v. the United Kingdom] the Court held that the prohibition on forced self-incrimination is connected with the right to remain silent, which means that this prohibition does not extend to the use in criminal proceedings of evidence that, although obtained under duress, has an existence independently of the will of the accused (hereafter: will-independent material). It does not appear from the Court’s later case-law that this point of view has been abandoned. This rule has been expanded on in Netherlands domestic case-law ...
It would not be reconcilable with the rule set out in Saunders that – as [the applicant] argues – the nemo tenetur principle extends to all documents the surrender of which implies recognition of their existence. Such recognition is, after all, implicit in every forced surrender of documents. To accept [the applicant’s] position would accordingly void the difference made in the Saunders judgment of its significance.
In the case of documents such as those here in issue, namely account statements and portfolio summaries drawn up by the bank which relate to accounts of which the taxpayer concerned has already been identified as the holder and the existence of which the Tax Inspector may therefore presume (van welke stukken de inspecteur derhalve het bestaan mag aannemen), it is beyond doubt that they constitute material that exists independently of the will of the person concerned (...).
The complaint of misconstruction of the law (rechtsklacht) therefore fails.”
The consequence was that the tax fines, as set by the Court of Appeal, remained unaffected.
B. Relevant domestic law
26. The relevant domestic law is set out in Van Weerelt v. the Netherlands (dec.), no. 784/14, §§ 46-49, 16 June 2015.
COMPLAINT
27. The applicant complains under Article 6 § 1 of the Convention that incriminating information was extracted from him under coercion for use as a basis for the imposition of tax fines, in disregard of the privilege against self-incrimination.
QUESTION TO THE PARTIES
Has there been a violation of Article 6 § 1 of the Convention in that the applicant was coerced into producing incriminating evidence which had an existence independent of his will (compare Funke v. France, no. 10828/84, Series A no. 256-A; Saunders v. the United Kingdom, no. 19187/91, Reports 1996-VI; and J.B. v. Switzerland, no. 31827/96, ECHR 2001‑III)?
[1] See Van Weerelt v. the Netherlands (dec.), no. 784/14, § 37, 16 June 2015.
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