AS TO THE ADMISSIBILITY OF
Application No. 27083/95
by E.G.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 April 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 20 March 1995 by
E.G. against the Netherlands and registered on 24 April 1995 under file
No. 27083/95;
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 1944, and resides in
The Hague. He is a chartered accountant by profession. Before the
Commission he is represented by P.J. Baauw, a lawyer practising in
Utrecht.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. Criminal proceedings
In September 1979 the applicant declared his earnings to the
fiscal authorities for the purposes of income tax. As suspicions had
arisen that his declaration was incomplete, the fiscal authorities
inspected his accounts in December 1979.
On 22 January 1981 the fiscal authorities questioned the
applicant for the first time as a suspect of a fiscal offence. By
letter of 11 July 1983 the fiscal authorities informed the public
prosecutor of the applicant's case.
On 30 August 1984 the applicant was summoned to appear before the
Regional Court (Arrondissementsrechtbank) of The Hague on
27 September 1984 on charges of tax evasion.
Following a hearing held on 9 October 1984, the Regional Court,
in its judgment of 23 November 1984, convicted the applicant and
sentenced him to three months' imprisonment, suspended pending a
probation period, and imposed a fine of 20.000 Dutch guilders. Both the
applicant and the public prosecutor filed an appeal with the Court of
Appeal (Gerechtshof) of The Hague.
By judgment of 24 March 1986 the Court of Appeal quashed the
judgment of 23 November 1984 and declared the initial summons of
30 August 1984 void. It found the facts with which the applicant had
been charged insufficiently described in the summons. The public
prosecutor filed an appeal in cassation with the Supreme Court (Hoge
Raad).
On 26 January 1988 the Supreme Court quashed the judgment of
24 March 1986, finding that the initial summons was in conformity with
the requirements of Section 261 of the Code of Criminal Procedure
(Wetboek van Strafvordering) and referred the case back to the Court
of Appeal of The Hague for a new decision with due regard to the
Supreme Court's findings.
In its judgment of 19 September 1988 the Court of Appeal of The
Hague quashed the Regional Court's judgment of 23 November 1984,
convicted the applicant of tax evasion and imposed a fine of 200.000
Dutch guilders. The applicant filed an appeal in cassation with the
Supreme Court.
By judgment of 31 October 1989 the Supreme Court quashed the
judgment of 19 September 1988 in respect of the sentence imposed by the
Court of Appeal. The Supreme Court rejected the applicant's other
complaints. It referred the case to the Court of Appeal of Amsterdam.
On 31 May 1991 the Court of Appeal of Amsterdam sentenced the
applicant to payment of a fine of 25.000 Dutch guilders.
b. Disciplinary proceedings
On 12 November 1984 the applicant informed the President of the
Netherlands Institute of Chartered Accountants (Nederlands Instituut
van Registeraccountants, hereinafter referred to as "NIVRA") of the
criminal proceedings against him and requested a meeting.
By letter of 16 November 1984 the applicant was informed that the
NIVRA President preferred to await the judgment of the Regional Court
before meeting the applicant. He was requested to send a copy of the
judgment in due time. The applicant sent a copy of the judgment of 23
November 1984 by letter of 4 December 1984.
On 6 December 1984 a meeting took place between the applicant,
the applicant's lawyer, the NIVRA President and a member of the NIVRA
Bureau. In the course of that meeting the NIVRA President expressed the
opinion that the applicant's conduct was unbecoming for a chartered
accountant and merited a disciplinary complaint, but that no
disciplinary complaint would be lodged pending the final outcome of the
criminal proceedings against the applicant.
Between 10 and 14 December 1984 the applicant's lawyer and the
member of the NIVRA Bureau exchanged correspondence concerning
disciplinary proceedings in similar cases. Between 14 December 1984 and
27 June 1990 no contacts took place between the applicant and NIVRA.
By letter of 27 June 1990 the NIVRA Board filed a disciplinary
complaint with the NIVRA Disciplinary Council (Raad van Tucht). The
Board informed the Disciplinary Council that the applicant had been
convicted by judgment of 19 September 1988 and that this judgment had
only been quashed by the Supreme Court as regards the sentence, thereby
finally determining that the applicant had committed a fiscal offence.
A copy of this letter was communicated to the applicant. By
letter of 9 July 1990 the applicant's lawyer objected to such
proceedings given the time that had elapsed since the facts had
occurred. He referred in this respect to Article 6 of the Convention
and Section 44 of the Chartered Accountants Act (Wet op de
Registeraccountants). On 19 December 1990 the NIVRA Board filed a
written reaction to this objection, to which the applicant's lawyer
replied by letter of 8 January 1991.
On 15 January 1991 a hearing was held before the Disciplinary
Council. In its interlocutory decision of 7 January 1992, the
Disciplinary Council held that Article 6 para. 1 of the Convention was
applicable and that exceeding a "reasonable time" within the meaning
of this provision does not exclude further proceedings since a
determination that this requirement has not been respected could also
lead to the imposition of a lighter disciplinary measure or to no such
measure being imposed at all. The Council held that the disciplinary
proceedings started on 31 October 1989, when the Supreme Court rendered
its judgment in the applicant's case. Noting that the applicant had not
kept NIVRA informed of the state of the criminal proceedings against
him, the Disciplinary Council did not find the delay between
31 October 1989 and 27 June 1990 unreasonably long. It therefore
rejected the applicant's objection.
On 27 February 1992 the applicant filed an appeal against the
decision of 7 January 1992 with the NIVRA Appeal Council (Raad van
Beroep). On 27 July 1992 the Appeal Council declared the appeal
inadmissible, as the appealed decision was not a decision on the merits
of a disciplinary complaint.
On 26 January 1993 a second hearing was held before the
Disciplinary Council. In its decision of 15 June 1993 the Disciplinary
Council noted the applicant's conviction of fiscal offences, found the
complaint by the NIVRA Board well-founded, found the applicant's
conduct unbecoming for a chartered accountant and, noting that a
disciplinary measure had already been previously imposed on the
applicant, ordered the applicant's name to be struck off the
Accountants' Register.
The applicant filed an appeal with the NIVRA Appeal Council on
16 August 1993. A hearing was held before the Appeal Council on
17 March 1994.
In its decision of 21 September 1994 the Appeal Council upheld
the decision of 7 January 1992, quashed the decision of 15 June 1993
insofar as it concerned the order to strike the applicant's name off
the Accountants' Register, ordered the applicant's suspension for a
period of three months, upheld the decision of 15 June 1993 for the
remainder and ordered the publication of its decision.
Insofar as the applicant raised complaints relating to the
reasonable time requirement under Article 6 para. 1 of the Convention,
the Appeal Council held that the disciplinary proceedings had started
on 23 December 1989, when the Supreme Court's judgment of
31 October 1989 in the applicant's case was published and thus brought
to the attention of the NIVRA Board. This finding was not altered by
the fact that, apart from the criminal conviction, the NIVRA Board had
also criticised the applicant for his actual conduct, i.e. providing
the fiscal authorities with an incomplete declaration. The Appeal
Council did not accept the applicant's argument that the proceedings
should be considered as having started on 6 December 1984 given that
the applicant had been clearly informed that a disciplinary complaint
would only be filed in case of a criminal conviction.
COMPLAINTS
The applicant complains that both the criminal and the
disciplinary proceedings exceeded a reasonable time within the meaning
of Article 6 para. 1 of the Convention.
THE LAW
1. The applicant complains that both the criminal and the
disciplinary proceedings exceeded a reasonable time within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a ...
hearing within a reasonable time by a ... tribunal ..."
2. The Commission notes that in the present case the criminal and
disciplinary consequences of the applicant's acts were strictly
distinguished. In fact, the disciplinary organs did not themselves
"convict" the applicant of the fiscal offences concerned, but they
based themselves on the findings established by the criminal courts.
The disciplinary organs' task was in essence limited to an examination
of the question whether in the case of the applicant being a chartered
accountant the commission of fiscal offences of which he had been found
guilty also constituted a disciplinary offence.
In these circumstances the Commission finds that these two sets
of proceedings must be examined separately.
Insofar as the applicant complains of the duration of the
criminal proceedings against him, the Commission finds that the final
decision in these proceedings was the decision on sentence of
31 May 1991 by the Court of Appeal of Amsterdam. This is more than six
months before the date on which the application was submitted to the
Commission.
It follows that the applicant has not satisfied the conditions
laid down in Article 26 (Art. 26) of the Convention and that this part
of the application must be rejected in accordance with Article 27 para.
3 (Art. 27-3) of the Convention.
3. As regards the applicant's complaint of the length of the
disciplinary proceedings against him, the Commission considers that
notice of this complaint should be given to the respondent Government
in accordance with Rule 48 para. 2 (b) of its Rules of Procedure and
that they should be invited to submit their observations in writing on
the admissibility and merits of this part of the application.
For these reasons, the Commission, unanimously,
DECIDES TO ADJOURN the examination of the applicant's complaint
concerning the length of the disciplinary proceedings against
him;
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy