EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23229/94
H.H.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 1 July 1997)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-5)1
II.ESTABLISHMENT OF THE FACTS
(paras. 6-38)3
III.OPINION OF THE COMMISSION
(paras. 39-55)8
A.Complaint declared admissible
(para. 39)8
B.Point at issue
(para. 40)8
C.As regards Article 6 para. 1 of the Convention
(paras. 41-54)8
CONCLUSION
(para. 55)10
DISSENTING OPINION OF MR H. DANELIUS JOINED BY
MM E. BUSUTTIL, G. JÖRUNDSSON, A. WEITZEL, J.-C. SOYER,
L. LOUCAIDES, M.A. NOWICKI AND D. ŠVÁBY11
APPENDIX I :PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION12
APPENDIX II :FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION23
I.INTRODUCTION
1. The present Report concerns Application No. 23229/94 introduced on 3
November 1993 against the Netherlands and registered on 10 January 1994.
The applicant is a Dutch national born in 1945 and resident in Blaricum,
the Netherlands.
The applicant was initially represented before the Commission by Mr J.B.
Boone, a lawyer practising in Wijk bij Duurstede, the Netherlands, who was
succeeded by Mr J. Italianer, a lawyer practising in Amsterdam.
The respondent Government were represented by their Agent, Mr H. von
Hebel, of the Netherlands Ministry for Foreign Affairs.
2.On 22 February 1995 the Second Chamber relinquished jurisdiction in the
case to the Plenary Commission. On 27 February 1995 the application, insofar as
it related to the length of proceedings, was communicated to the Government and
declared inadmissible as to the remainder. Following an exchange of written
observations, the complaint relating to the length of proceedings (Article 6
para. 1 of the Convention) was declared admissible on 13 May 1996. The decisions
on admissibility are appended to this Report. The applicant has submitted
observations on the merits of the case on 25 July 1996.
3.Having noted that there is no basis upon which a friendly settlement
within the meaning of Article 28 para. 1 (b) of the Convention can be secured,
the Commission, after deliberating, adopted this Report on 1 July 1997 in
accordance with Article 31 para. 1 of the Convention, the following members
being present:
Mr.S. TRECHSEL, President
Mrs.G.H. THUNE
Mrs.J. LIDDY
MM.E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. ŠVÁBY
G. RESS
A. PERENI?
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELI?NAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs.M. HION
MM.R. NICOLINI
A. ARABADJIEV
4.In this Report the Commission states its opinion as to whether the facts
found disclose a violation of the Convention by the Netherlands.
5.The text of the Report is now transmitted to the Committee of Ministers of
the Council of Europe, in accordance with Article 31 para. 2 of the Convention.
II.ESTABLISHMENT OF THE FACTS
6.In his application, in which he relies on Article 6 para. 1 of the
Convention, the applicant complains of the length of criminal proceedings.
7. On 5 December 1983, the applicant was arrested and subsequently detained
on remand on suspicion of tax fraud and forgery. He was released on 9 December
1983.
8. Also on 5 December 1983, a lawyer who was at the same time the applicant's
financial adviser, was arrested on suspicion of having been an accessory or
accomplice to forgery, or having procured the commission of forgery, and on
suspicion of having been an accessory to tax fraud. In addition to the applicant
and this lawyer, there were six other suspects, one of whom was a company with
limited liability.
9. On 9 December 1983, the investigating judge (rechter-commissaris) of the
Regional Court (Arrondissementsrechtbank) of Amsterdam, at the request of the
public prosecutor (officier van justitie), opened a preliminary judicial
investigation (gerechtelijk vooronderzoek) to investigate the suspicions against
the applicant.
10. On 21 March 1984, the investigating authorities sent a request for
international legal assistance (rechtshulpverzoek) to the competent British
authorities, requesting, inter alia, the examination of witnesses and
information about a number of companies. On 13 March 1985, the British
authorities informed the Dutch authorities that they had been unable to carry
out the request.
11. On 10 July 1984, a request for international legal assistance was sent to
the competent authorities in Luxembourg in regard to the examination of
witnesses and information about certain bank accounts. On 29 April 1985, the
request was refused by the Luxembourg authorities.
12. On 11 December 1984, the applicant filed a request under Section 180 of
the Code of Criminal Procedure (Wetboek van Strafvordering) with the Regional
Court of Amsterdam, asking the Court to order the acceleration of the
investigation.
13. On 24 April 1985, the preliminary judicial investigation was closed. The
applicant was notified of the closure on 17 May 1985.
14. On 19 June 1985, the applicant was summoned to appear before the Regional
Court of Amsterdam on 5 September 1985 on five charges of tax fraud and forgery.
The offences the applicant was charged with had allegedly been committed between
February 1977 and September 1983.
15. On 20 June 1985, the applicant lodged an objection (bezwaarschrift)
against the indictment with the Regional Court of Amsterdam. The Regional Court
examined the objection at a hearing on 17 September 1985 and rejected it on 21
October 1985.
16. The applicant filed an appeal against the decision of 21 October 1985 with
the Court of Appeal (Gerechtshof) of Amsterdam. On 18 April 1986, the Court of
Appeal quashed the Regional Court's decision, referred the case to the
investigating judge at the Regional Court of Amsterdam, and ordered that
witnesses, proposed by the applicant, be heard and that the Regional Court of
Amsterdam take a new decision on the applicant's objection against the
indictment lodged on 20 June 1985 after the examination of the witnesses.
17. In December 1986, the public prosecutor decided not to pursue the charges
(sepot) against the lawyer and the other six suspects in view of the perceived
impossibility of concluding the criminal proceedings against these suspects
within a reasonable time within the meaning of Article 6 of the Convention. The
charges against the applicant, however, were not relinquished.
18. In January 1987, the investigating judge summoned the witnesses whose
examination had been requested by the applicant. The applicant and his lawyer
were invited to attend the hearings but did not appear, nor did they send the
investigating judge questions in writing to be put to the witnesses. On 7
December 1989, the applicant stated before the Regional Court of Amsterdam that
he and his lawyer had not attended the hearings because they had assumed that
the charges brought against the applicant would be relinquished as well.
19. On 23 April 1987, the Regional Court of Amsterdam was due to re-examine
the objection against the indictment which had been lodged by the applicant on
20 June 1985. At the applicant's request the hearing was adjourned.
20. On 11 November 1987, the applicant's objection against the indictment was
once again due to be re-examined by the Regional Court. This hearing was
adjourned at the request of the public prosecutor.
21. On 8 January 1988, the Regional Court re-examined the applicant's
objection against the indictment. On 19 January 1988, it rejected the objection.
22. The applicant's appeal against the decision of 19 January 1988 was
rejected by the Court of Appeal on 29 June 1988 following a hearing on 22 April
1988. The applicant's subsequent appeal in cassation against the decision of the
Court of Appeal was rejected on 6 June 1989 by the Supreme Court (Hoge Raad).
23. After the Supreme Court had given its decision on the objection against
the indictment lodged by the applicant on 20 June 1985, the criminal case itself
could be dealt with by the Regional Court of Amsterdam.
24. The applicant was summoned to appear before the Regional Court of
Amsterdam on 26 October 1989. The Court commenced its examination of the case
but, at the request of the applicant, whose lawyer had to leave the Court
session on account of obligations elsewhere, and the public prosecutor, who
wished to summon witnesses and to add documents to the case-file, the
examination was adjourned until 7 December 1989.
25. On 7 December 1989, the Regional Court resumed its examination of the case
but adjourned it until 15 January 1990, ordering that a witness who had failed
to appear and whom the public prosecutor insisted should be heard be brought
before the Court by force. On 15 January 1990, the witness again not having
appeared, the Regional Court rejected the public prosecutor's request for
another adjournment, a request which was made in order to hear the witness at a
later date.
26. In his final address to the Court, the public prosecutor stated, inter
alia, that in his view the applicant had objected to the indictment because he
intended to delay the proceedings. He submitted that the applicant and his
lawyer had not attended the hearings before the investigating judge and that the
referral of the case by the Court of Appeal to the investigating judge, in order
to have the latter examine witnesses at the request of the defence, had proved
useless.
27. On 29 January 1990, the Regional Court acquitted the applicant of two
charges, convicted him of the remaining three, and sentenced him to nine months'
imprisonment, suspended pending a probation period of two years, and a fine of
750,000 Dutch guilders to be replaced by six months' imprisonment in case of
non-payment. When it imposed its sentence, the Court took into account, inter
alia, that the long period of time which had elapsed between the applicant's
arrest and the Court's decision could not solely be attributed to the applicant.
28. Both the applicant and the public prosecutor lodged an appeal against the
judgment with the Court of Appeal of Amsterdam. The Court of Appeal started its
examination of the case on 17 June 1991 but adjourned it until 5 September 1991
in view of the non-appearance of a witness whom the applicant insisted be heard.
The Court of Appeal ordered that the witness be brought before it by force.
29. On 5 September 1991, the Court of Appeal resumed its examination of the
case. At the applicant's request it examined four witnesses, but the witness
mentioned above had not appeared. Because the applicant insisted that this
witness be heard, the Court adjourned its examination until 18 November 1991,
ordering that the witness be brought before the Court by force. The Court of
Appeal stated that should the witness not be present on 18 November 1991, it
would not further adjourn its proceedings.
30. On 18 November 1991, the witness was, again, not present. In his
pleadings, the applicant requested the Court of Appeal to declare the
prosecution inadmissible because the criminal charges against him had not been
determined within a reasonable time.
31. On 2 December 1991, the Court of Appeal quashed the Regional Court's
judgment, acquitted the applicant of two charges and convicted him of the
remaining three.
32. The Court of Appeal found that some undesirably long periods of delay had
occurred at the stage of the examination of the objection against the
indictment. It held, however, that the criminal charges against the applicant
had been determined within a reasonable time. The Court stated that it would
take into account the duration of the proceedings in the determination of the
sentence.
33. When it imposed its sentence on the applicant, the Court of Appeal held,
inter alia:
"The accused repeatedly and on a large scale withheld money from society.... In this way, the accused aggrieved the community in a serious way. Apparently, the accused let himself be guided by the objective of financial gain at the expense of the community. Under these circumstances, the imposition of a penalty which deprives [him of his] freedom, in combination with a substantial fine, is in every way justified. In view of the facts that in the meantime a very long time has elapsed since the commission of the offences at issue, that it has become plausible that the accused has suffered psychological detriment because of the legal proceedings in question and the accompanying publicity, and that the accused has not previously been convicted of a criminal offence, the Court finds it appropriate to decide that the imprisonment to be imposed shall be suspended." 34. The applicant was sentenced to nine months' imprisonment, suspended pending a probation period of two years, and a fine of half a million Dutch guilders to be replaced by six months' imprisonment in case of non-payment. 35. On 10 December 1991, the applicant filed an appeal in cassation with the Supreme Court. He complained, inter alia, of the length of the criminal proceedings against him and argued that the prosecution should have been declared inadmissible by the Court of Appeal for this reason. 36. The Supreme Court was scheduled to hear the case on 22 December 1992, but at the request of the applicant, the case was adjourned to 2 February 1993. 37. On 20 April 1993, the Advocate General (Advocaat-Generaal) at the Supreme Court submitted his written conclusions. These were sent to the applicant's lawyer, who replied to them on 10 May 1993. 38. On 1 June 1993, the Supreme Court rejected the applicant's appeal in cassation. It upheld the reasoning of the Court of Appeal. The Supreme Court added: "Even if the period of time between the lodging of the appeal in cassation and its examination during a session of the Supreme Court is taken into account, it cannot be said that the trial of this case has not taken place within a reasonable time within the meaning of ... Article 6 of the Convention ..." III.OPINION OF THE COMMISSION A.Complaint declared admissible 39.The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time. B.Point at issue 40. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention. C.As regards Article 6 para. 1 (Art. 6-1) of the Convention 41. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows : "In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ..." 42. The proceedings in question concerned the criminal charges against the applicant and they accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention. 43. These proceedings, which began on 5 December 1983 and ended on 1 June 1993, lasted nine years and almost six months. 44. The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30). 45. The applicant submits that the case was not particularly complex since the facts at issue overlapped each other to a large extent. As regards the preliminary judicial investigation the applicant argues that its long duration was imputable to the investigating authorities who, inter alia, made a request for judicial assistance to the Luxembourg authorities while they must have known that no such assistance would be forthcoming in view of the nature of the alleged offences. 46. In respect of the position adopted by the applicant or his counsel, the applicant submits that an accused can never be reproached for having made use of the legal remedies available to him, such as the lodging of an objection against the indictment. Moreover, in his view the delays which occurred at this stage of the proceedings were not the result of the recourse to this remedy but rather of the unacceptably long periods which elapsed between the various phases in the processing thereof. Finally, the applicant submits that any requests for adjournments made on his behalf are offset against numerous attempts to expedite the proceedings which were made by his counsel during the various hearings and in writing on 11 December 1984. 47. According to the Government, the case involved a very large and complex criminal investigation into tax fraud and forgery. This investigation related, amongst other things, to income tax and company tax returns for five separate years. Requests for assistance also had to be made in the course of the investigation to the authorities of the United Kingdom and Luxembourg. The investigation moreover focused on a number of suspects and involved the questioning of numerous witnesses and experts. 48. The Government further submit that the position adopted by the defence significantly contributed to the length of the proceedings. To begin with, the proceedings in the criminal case itself were considerably delayed as a result of the objection lodged by the applicant against the indictment. The Government also wish to stress that the applicant slowed down the proceedings on a number of occasions by requesting adjournments. 49. The Commission considers that the case was complex, concerning as it did "white collar" crimes, i.e. tax fraud and forgery. Such offences are often purposely conducted by means of complex transactions in order to escape the control of the investigating authorities. 50. As regards the conduct of the applicant, the Commission notes that he lodged an objection against the indictment. The Commission also observes that, although this step in itself cannot be qualified as unreasonable, these proceedings did contribute to the overall length of the proceedings to a considerable extent. The Commission observes in this respect that, having lodged this objection, the applicant or his lawyer subsequently failed to attend the hearing of witnesses who had been summoned at their request in January 1987 (para. 18). Moreover, referring to the facts set out in paras. 19, 24 and 36, the Commission notes that the applicant was responsible for a number of adjournments and delays, totalling about ten months, albeit that the delay from 26 October 1989 until 7 December 1989 had also come about at the request of the public prosecutor (para. 24). 51. A further cause of delay was the failure of a witness to appear (paras. 25, 28 and 29). About four months was taken up with adjournments of hearings before the Regional Court and the Court of Appeal in order for this witness to be examined. 52. As regards the conduct of the authorities the Commission notes that although some of the delays were attributable to them these were not decisive for the overall length of the proceedings. In this respect the Commission refers in particular to the nine months which elapsed between the decision of the Court of Appeal of 18 April 1986 that witnesses were to be heard and the summoning of these witnesses by the investigating judge in January 1987, and the period of seventeen months between the judgment of the Regional Court of 29 January 1990 and the first hearing on appeal before the Court of Appeal on 17 June 1991. 53. In assessing the length of the proceedings, the Commission has finally considered that the applicant was only detained for four days and that his sentence was mitigated by the Court of Appeal in view of the lapse of time in his case. 54. In view, therefore, of the particular complexity of the case which required an elaborate investigation in combination with the short period of pre- trial detention and the reasons given for the mitigation of the sentence, the Commission does not find that there has been a violation of the applicant's right to a hearing within a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. R.B. v. Switzerland, Comm. Report 24.5.95; CM Resolution 15.12.95, No. DH (95) 395). CONCLUSION 55. The Commission concludes, by 24 votes to 8, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention. H.C. KRÜGER S. TRECHSEL Secretary President to the Commission of the Commission (Or. English) DISSENTING OPINION OF MR H. DANELIUS JOINED BY MM E. BUSUTTIL, G. JÖRUNDSSON, A. WEITZEL, J.-C. SOYER, L. LOUCAIDES, M.A. NOWICKI AND D. ŠVÁBY I have voted against the conclusion of the Commission that there has been no violation of Article 6 para. 1 of the Convention in the present case. My reasons are as follows. I first recall that the Supreme Court expressly stated that it could not be said that the trial had not taken place within a reasonable time within the meaning of Article 6 of the Convention. Consequently, there is not in the present case any acknowledgement at the national level, either expressly or in substance, of a breach of the Convention (cf. Eur. Court HR, Eckle v. Germany judgment of 15 July 1982, Series A no. 51, p. 30, para. 66). No remedy for the alleged violation of Article 6 has therefore been provided by the domestic courts, although the Court of Appeal did mitigate the sentence in view of the very long time which had elapsed since the offences had been committed. As regards the conduct of the proceedings, I note that the Court of Appeal itself found that some undesirably long periods of delay had occurred at the stage of the examination of the objection against the indictment. In fact, the proceedings regarding this matter alone lasted for about four years. Moreover, after the objection against the indictment had been finally rejected, it took another four years to reach a final determination of the criminal charges. It is true that at that stage the applicant could be held responsible for certain delays by asking for adjournments and that other delays were due to the fact that a witness was not available. However, there were other delays which were attributable to the courts. I note, in this regard, the period of seventeen months which elapsed between the Regional Court's judgment and the first hearing before the Court of Appeal. I also consider that in view of the long time which had already elapsed before the charges were examined by the courts, special efforts should have been made to expedite the remaining proceedings. The total length of the proceedings was about nine and a half years, and I consider that such a length, in order to be acceptable, would call for special justification in a serious criminal case like the present one whose outcome was of considerable importance to the applicant. I cannot find that there were circumstances justifying this long duration and therefore conclude that the requirements of Article 6 para. 1 of the Convention as regards a determination of criminal charges within a reasonable time were not respected in this case.
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