EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 22046/93
H.J.B.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 11 April 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . 1
II. ESTABLISHMENT OF THE FACTS
(paras. 6-20) . . . . . . . . . . . . . . . . . . . . . . . . 2
III. OPINION OF THE COMMISSION
(paras. 21-38). . . . . . . . . . . . . . . . . . . . . . . . 4
A. Complaint declared admissible
(para. 21) . . . . . . . . . . . . . . . . . . . . . . . 4
B. Point at issue
(para. 22) . . . . . . . . . . . . . . . . . . . . . . . 4
C. Article 6 para. 1 of the Convention
(paras. 23-37) . . . . . . . . . . . . . . . . . . . . . 4
CONCLUSION
(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . 7
I. INTRODUCTION
1. The present Report concerns Application No. 22046/93, introduced
on 31 March 1993 and registered on 11 June 1993.
The applicant is a Dutch citizen, born in 1943 and residing in
Amsterdam.
The applicant was represented before the Commission by
Mr. J. Groen, a lawyer practising in The Hague.
The respondent Government were represented by their Agent,
Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.
2. On 12 October 1994 the Commission (Second Chamber) decided to
communicate the application, which concerns a complaint regarding the
length of criminal proceedings, to the Government. Following an
exchange of written observations, the application was declared
admissible on 4 July 1995. The decision on admissibility is appended
to this Report.
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 (Second Chamber), after
deliberating, adopted this Report on 11 April 1996 in accordance with
Article 31 para. 1 of the Convention, 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
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. 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.
7. In 1983 the applicant founded and, until 1985, was managing
director of a Belgian advertising company with limited liability, X.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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 at the request of the applicant's co-defendant. The
Regional Court also heard these witnesses in the criminal case against
the applicant.
17. 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.
18. 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.
19. 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.
20. 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
21. The Commission has declared admissible the applicant's complaint
concerning the length of the criminal proceedings against him.
B. Point at issue
22. The only point at issue is whether the length of the criminal
proceedings in the present case exceeded the "reasonable time"
requirement referred to in Article 6 para. 1 Art. 6-1) of the
Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
23. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by (a) ... tribunal established by law."
Period to be taken into consideration
24. The applicant submits that the criminal proceedings against him
started on 25 November 1986 when he was questioned by fiscal
investigation authorities and he was informed that he was not obliged
to answer. In this respect the applicant also refers to the
comprehensive minutes of the investigation by the FIOD in which he is
referred to as a suspect.
25. The Government submit that a criminal charge against the
applicant only existed from the moment of his arrest on 9 March 1987.
They argue 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.
26. According to the case-law of the Convention organs, the period
to be taken into consideration under Article 6 para. 1 (Art. 6-1) must
be determined in an autonomous manner and not on the basis of the rules
in domestic law. It begins at the time when formal charges are brought
against a person or when that person has otherwise been substantially
affected by actions taken by the prosecuting authorities as a result
of a suspicion against him (cf. Eur. Court H.R., Eckle judgment of 15
July 1982, Series A no. 50, p. 33, para. 73; No. 14723/89, Dec. 9.7.92,
D.R. 73 p. 81).
27. The Commission finds that the applicant should be considered as
having been substantially affected by his questioning on
25 November 1986. In this respect the Commission notes that the
applicant was at that time informed that he was not obliged to answer
the questions put to him and, furthermore, that he was confronted with
a statement from another suspect which incriminated him.
28. Accordingly, the Commission finds that the relevant time began
to run when the applicant was first interviewed by FIOD officers on
25 November 1986 and ended with the Supreme Court's decision of
15 December 1992. The proceedings thus exceeded six years.
Reasonableness of the length of the proceedings
29. The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and having regard to its complexity, the
conduct of the parties and the conduct of the authorities dealing with
the case (cf. Eur. Court H.R., Boddaert judgment of 12 October 1992,
Series A no. 235-D, p. 82, para. 36).
30. The applicant submits that the investigation by the FIOD may have
been complex, but he adds that this investigation had been completed
by the end of May 1987 whereas he did not receive a summons to appear
before the Regional Court until 27 December 1988. The applicant also
argues that the period which elapsed between 21 September 1989 when he
lodged an appeal against the decision of the Regional Court and the
hearing before the Court of Appeal on 25 June 1991 was unreasonably
long.
31. The Government contend that the investigation by the fiscal
authorities was complex and extensive. 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 who did not ask the Regional Court to refrain from the
hearing of certain witnesses whose testimony had become unnecessary in
light of the fact that the applicant had already confessed to the
offence.
32. The Commission considers that the investigation carried out by
the fiscal authorities into the Y. company may have involved a certain
complexity, involving as they did the questioning of a large number of
people and the examination and analysis of seized accounts.
33. As regards the conduct of the applicant, the Commission notes
that the hearing scheduled to take place on 17 January 1989 before the
Regional Court of Amsterdam was postponed until 11 April 1989 at the
request of the applicant's defence counsel. This delay of almost three
months may therefore be attributed to the applicant.
34. The Commission cannot subscribe to the Government's point of view
that any delay caused by the decision of the Regional Court to hear
certain witnesses may be attributed to the applicant who failed to ask
the Regional Court to refrain from the hearing of these witnesses. In
this respect, the Commission notes that it was the applicant's co-
defendant who had asked for these witnesses to be heard and it was the
Court who decided to hear them also in relation to the case against the
applicant. In these circumstances the applicant cannot be considered
responsible for any delay which may have resulted from the hearing of
these witnesses.
35. As regards the conduct of the authorities, the Commission notes
that the investigation was completed by the end of May 1987. However,
the applicant was not summoned to appear before a court until
27 December 1988, i.e. one year and seven months later. The Commission
further notes that a period of one year and nine months elapsed between
the filing of an appeal on 21 September 1989 against the decision of
the Regional Court and the hearing of the appeal before the Court of
Appeal on 25 June 1991. The Government have offered no explanation for
these delays.
36. The Commission reaffirms that it is for Contracting States to
organise their legal systems in such a way that their courts can
guarantee the right of everyone to obtain a final decision in the
determination of a criminal charge against him within a reasonable time
(cf. Eur. Court H.R., Baggetta judgment of 25 June 1987, Series A
no. 119, p. 32, para. 23).
37. In the light of the criteria established by case-law and having
regard to the circumstances of the present case, the Commission
considers that the length of the proceedings was excessive and failed
to meet the "reasonable time" requirement.
CONCLUSION
38. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy