AS TO THE ADMISSIBILITY OF
Application No. 22046/93
by H.J.B.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 4 July 1995, 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
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 31 March 1993 by
H.J.B. against the Netherlands and registered on 11 June 1993 under
file No. 22046/93;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 12 October 1994 to communicate the
application;
- the observations submitted by the respondent Government on
17 January 1995 and the observations in reply submitted by the
applicant on 29 March 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch national, born in 1943, and resides at
Amsterdam. Before the Commission he is represented by Mr. J. Groen, a
lawyer practising in The Hague.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Between 1 October 1982 and the beginning of 1983 the applicant
worked for a Dutch company with limited liability, Y., in the
Netherlands. In 1983 he moved to Belgium.
In 1983 the applicant founded and, until 1985, was managing
director of a Belgian advertising company with limited liability, X.
In December 1985 the Dutch tax authorities and the Government
Audit Department (Rijksaccountantsdienst) investigated the Y. company.
As a result of their findings, the Fiscal Intelligence and
Investigation Department (Fiscale Inlichtingen en Opsporingsdienst -
hereinafter referred to as "FIOD") started an investigation in August
1986 into allegations of fraud perpetrated by the Y. company. In the
course of this investigation a large number of people who had been
involved with the Y. company over the years were heard. In September
1986 the accounts of the Y. company were confiscated by the FIOD.
On 25 November 1986 the applicant, who in the meantime had
returned to the Netherlands, was questioned by officers of the FIOD,
since it had appeared from the Y. company's accounts that the X.
company had charged the Y. company more for certain services than other
companies had done for similar services.
Before being questioned by the FIOD, the applicant was informed
that he was under no obligation to answer the questions put to him. The
applicant made a statement and admitted having drawn up falsified
invoices for the Y. company but refused to answer questions about
certain particular invoices since, at that time, his accounts were not
available to him. He stated he would revert to the matter together with
his lawyer. He was also confronted with an incriminating statement made
by one of the founders of the Y. company to the FIOD on 24 November
1986, claiming that the applicant had committed fraudulent acts. The
applicant refused to sign the minutes of the questioning without
previously having consulted his lawyer.
On 25 February 1987 the FIOD questioned the applicant, in the
presence of his lawyer, for a second time. He was again informed that
he was under no obligation to answer the questions put to him. The
applicant answered certain questions and informed the FIOD that he was
unable to consult his accounts, since these were held by his Belgian
accountant who refused to hand them over unless the applicant would pay
him an outstanding debt. The applicant again refused to sign the
minutes of the questioning, although he declared their contents to be
correct.
On 9 March 1987 the applicant was arrested and detained on remand
on suspicion of fraud. According to the Government he was released on
17 March 1987; the applicant claims, however, that he was released on
14 March 1987.
The FIOD closed its investigation at the end of May 1987 and the
resulting comprehensive minutes, dated 26 May 1987, were received by
the Prosecution Department (Openbaar Ministerie) of Amsterdam on 29
July 1987. These comprehensive minutes contained, inter alia, the
records of the interviews of the FIOD with the applicant which had
taken place on 25 November 1986, 25 February and 9 March 1987. In these
records the applicant is referred to as a suspect.
On 27 December 1988 the applicant was summoned to appear on 17
January 1989 before the Regional Court (Arrondissementsrechtbank) of
Amsterdam on charges of fraud.
The hearing on 17 January 1989 was adjourned by the Regional
Court in accordance with a request by the applicant's counsel, who
stated that he had received the case-file so late that he had been
unable to prepare the defence adequately.
A hearing took place on 11 April 1989. After having questioned
the applicant, the Regional Court adjourned the proceedings as the
available time was too short. Further hearings took place on 23 May,
4 July and 5 September 1989, during which the Regional Court heard a
number of witnesses. The Government contend that these witnesses were
heard at the request of the applicant's counsel. The applicant,
however, denies this and submits that the hearing of these witnesses
was requested by the counsel of a co-defendant.
On 19 September 1989 the Regional Court convicted the applicant
of fraud and incitement to fraud, and sentenced him to eighteen months'
imprisonment. In its judgment the Regional Court deemed the period
during which the Prosecution had been in possession of the case-file
without any investigation having taken place to have been undesirably
long ("onwenselijk lang"), but it held that this period had
nevertheless not exceeded a reasonable time.
The applicant, on 21 September 1989, and the prosecution, on 29
September 1989, filed an appeal against this judgment with the Court
of Appeal (Gerechtshof) of Amsterdam. On 25 June 1991 a hearing was
held before the Court of Appeal.
On 9 July 1991 the Court of Appeal quashed the judgment of 19
September 1989, convicted the applicant of fraud and incitement to
fraud and sentenced him to eight months' imprisonment. The Court of
Appeal rejected the applicant's argument that the prosecution should
be declared inadmissible as it could no longer be held that the
criminal charges against him would be determined within a reasonable
time as required by Article 6 para. 1 of the Convention. It held in
this respect that the proceedings at issue had started on 9 March 1987
with the applicant's arrest and not on 25 November 1986, when he was
questioned for the first time, since from this questioning he could not
reasonably have deduced that criminal charges would be brought against
him.
The applicant's appeal in cassation was rejected by the Supreme
Court (Hoge Raad) on 15 December 1992. As regards the applicant's
complaint of excessive length of the criminal proceedings against him,
the Supreme Court accepted the Court of Appeal's findings.
COMPLAINT
The applicant complains under Article 6 para. 1 of the Convention
that the criminal proceedings against him, lasting from
25 November 1986 until 15 December 1992, were not terminated within a
reasonable time.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 March 1993 and registered
on 11 June 1993.
On 12 October 1994 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits.
The Government's written observations were submitted on
17 January 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 29 March 1995.
THE LAW
The applicant complains of the length of the criminal proceedings
against him. He invokes Article 6 para. 1 (Art. 6-1) of the Convention,
which provides, insofar as relevant:
"In the determination of (...) any criminal charge against him,
everyone is entitled to a (...) hearing within a reasonable time
by a (...) tribunal (...)."
The Government submit in the first place that the FIOD's
interviews with the applicant on 25 November 1986 and 25 February 1987
were conducted in the context of an audit at the Y. company in
connection with suspected tax fraud, in which the applicant had been
mentioned as someone who might have been involved in fraudulent
activities. The mere fact that he was informed at the beginning of
these interviews that he was not obliged to answer does not, in the
Government's view, mean that there was a criminal charge against him
at that moment or that his prosecution was in prospect. A criminal
charge against the applicant only existed from the moment of his arrest
and detention on 9 March 1987.
The Government further submit that the investigation carried out
by the FIOD was extensive and complex. They allege that, insofar as
there can be said to have been any delay in this case, this is at least
partly attributable to the applicant's counsel, who, during the
hearings before the Regional Court, repeatedly asked for the case to
be adjourned and for witnesses to be heard.
The applicant maintains that the period to be taken into
consideration started on the day of his first interview by the FIOD on
25 November 1986, during which he was told that he was not obliged to
answer and was considered a suspect, as is apparent from the
comprehensive minutes.
He submits that the investigation by the FIOD may have been
complex, but adds that this investigation had been completed by the end
of May 1987. The applicant points to a number of periods of inactivity
which are, in his opinion, wholly attributable to the State. He further
denies that his counsel requested the hearing of witnesses before the
Regional Court but submits that these witnesses were heard at the
request of the counsel of a co-defendant.
The Commission, after a preliminary investigation of the present
complaint in the light of the parties' submissions, considers that it
raises questions of fact and law which require an examination of the
merits. This complaint cannot, therefore, be declared inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for inadmissibility
have been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the Second Chamber President of the Second Chamber
(M.T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy