AS TO THE ADMISSIBILITY OF
Application No. 22531/93
by Arie MANTEL and MANTEL HOLLAND BEHEER B.V.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 May 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 13 July 1993 by
Arie MANTEL and MANTEL HOLLAND BEHEER B.V. against the Netherlands and
registered on 26 August 1993 under file No. 22531/93;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
22 April 1995 and the observations in reply submitted by the
applicant on 3 July 1995;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Dutch national, born in 1943, and
currently resides at Andijk, the Netherlands. The applicant company is
a Dutch company with limited liability, having its registered seat at
Andijk, the Netherlands. The first applicant is one of the directors
of the applicant company. Before the Commission the applicants are
represented by Mr. F. van Schaik, a lawyer practising at Berkel en
Rodenrijs, the Netherlands.
The facts, as submitted by the parties, may be summarised as
follows.
Within the context of a joint investigation by the Inspection of
Direct Taxes (Inspectie der Directe Belastingen), the Agricultural
Social Funds (Agrarische Sociale Fondsen) and the Social Security
Common Administrative Office (Gemeenschappelijk Administratiekantoor),
the public prosecutor ordered a preliminary judicial investigation
(gerechtelijk vooronderzoek) on 8 November 1985 into the salary
administration of the applicant company, a company which cultivates and
trades in flower bulbs. This investigation formed part of a large-scale
investigation of tax fraud by five bulb-producing companies and their
respective directors.
On 2 December 1985 the home of the first applicant and the
premises of the applicant company were searched.
On 7 May 1986 the public prosecutor ordered an extension of the
preliminary judicial investigation into the salary administration of
the applicant company and some interviews were conducted by the
investigating judge (rechter-commissaris). The applicants allege that
the actual investigations were completed by the middle of 1986.
On 21 April 1987 the applicant company was notified in writing
by the investigating judge of the closure of the preliminary judicial
investigation. On 27 May 1987 the applicant company was notified of the
prosecution's decision to commit the applicant company for trial
(kennisgeving van verdere vervolging).
On 1 June 1987 the applicant company lodged an objection against
this decision with the Regional Court (Arrondissementsrechtbank) of
Alkmaar, claiming that the prosecution had become inadmissible because
the Public Prosecutions Department (Openbaar Ministerie) had waited too
long with giving notice of the committal for trial after it had
notified the applicant company of the closure of the preliminary
judicial investigation.
On 25 June 1987 a hearing took place before the Alkmaar Regional
Court in chambers and on 30 July 1987 the Court in chambers decided to
discontinue the proceedings (buitenvervolgingstelling) against the
applicant company. The public prosecutor appealed against this decision
on the same day.
Meanwhile, on 8 July 1987, the first applicant was summoned to
appear before the Alkmaar Regional Court on 4 August 1987 on charges
of ordering and directing forgery, committed by the applicant company,
in his capacity as director of the applicant company.
On 13 July 1987 the first applicant lodged an objection against
the summons with the Alkmaar Regional Court. He claimed that it would
only have been possible for the Public Prosecutions Department to
prosecute him if it had conducted the prosecution proceedings against
him at the same time as they were being conducted against the applicant
company. As the first applicant had neither received a notification of
closure of the preliminary judicial investigation nor been notified of
the decision to commit the case for trial, he considered that the
Public Prosecutions Department could not decide at this stage to
prosecute him.
Following a hearing on 4 August 1987, the Alkmaar Regional Court
in chambers decided on 13 August 1987 to discontinue the proceedings
against the first applicant. The public prosecutor appealed against
this decision on 14 August 1987.
On 11 December 1987 hearings took place before the Court of
Appeal (Gerechtshof) of Amsterdam in chambers in the cases of both
applicants. On 25 February 1988 the Court of Appeal quashed the
decisions to discontinue the proceedings and ruled that the applicants
should stand trial. The Court considered in respect of the first
applicant that he could not have deduced from the facts that he would
not be prosecuted.
The applicants' appeals in cassation against the Court of
Appeal's decisions were rejected by the Supreme Court (Hoge Raad) on
6 December 1988.
On 13 June 1989 hearings took place before the Alkmaar Regional
Court in the cases concerning the criminal charges against the
applicants.
On 27 June 1989 the Alkmaar Regional Court acquitted the
applicants, holding that the searches of the first applicant's house
and the applicant company's premises had been unlawful. On 11 July 1989
the public prosecutor appealed against these judgments.
Following a hearing in both cases on 25 April 1991, the Amsterdam
Court of Appeal quashed the judgments of the Alkmaar Regional Court on
6 May 1991 and convicted the applicant company of forgery and the first
applicant of ordering and directing this forgery in his capacity as
director.
The Court of Appeal found that both sets of proceedings had taken
an undesirably long time ("onwenselijk lang"). It held, however, that
they had not exceeded the reasonable period of time within the meaning
of Article 6 para. 1 of the Convention since the cases were complicated
and formed part of a number of connected cases. Also, some time had
been taken up by the preliminary proceedings concerning the
admissibility of further prosecution by the Public Prosecutions
Department. The Court stated that it would take into account the
duration of the proceedings in the determination of the sentences.
When it imposed its sentence on the first applicant, the Court
of Appeal held:
"De valsheid in geschrift en de wijze waarop deze werden gepleegd zijn als geraffineerd aan te merken en slechts moeizaam te achterhalen. Op zich zelf is daarin reden gelegen aan verdachte een hoge geldboete op te leggen. Slechts in de onwenselijk lange duur van de procedure en de omstandigheid dat verdachte niet eerder strafrechtelijk is veroordeeld vindt het hof aanleiding de op zich zelf passend geachte geldboete aanzienlijk te matigen en vast te stellen op het hierna te noemen beperkte bedrag." "The fraudulent acts and the manner in which they have been committed may be qualified as cunning and difficult to detect. This in itself is sufficient reason to impose a severe fine on the accused. Only in the undesirably long duration of the proceedings and the circumstance that the accused has not previously been convicted does the Court find reason to lower substantially the fine it finds in itself appropriate and to fix it at the limited sum mentioned below." The Court of Appeal used the same reasoning when it imposed its sentence on the applicant company; it did not, however, refer to the fact that the applicant company had no previous convictions. The first applicant was sentenced to a fine of 10,000 Dutch guilders or, in case of non-payment, 100 days' imprisonment, of which 5,000 Dutch guilders or, in case of non-payment, 50 days' imprisonment were suspended pending a probationary period of two years. The applicant company was sentenced to a fine of 50,000 Dutch guilders. On 10 May 1991 both applicants filed an appeal in cassation. On 8 March 1992 the lawyer of both applicants requested the President of the Amsterdam Court of Appeal to transmit the case-files at issue to the Supreme Court. On 21 September 1992 the Registry of the Supreme Court received the case-files. The procurator general (Procureur-Generaal) at the Supreme Court advised this Court to quash the judgments of the Court of Appeal of Amsterdam on the ground that the period of time between the filing of the appeals in cassation and the judgments of the Supreme Court had exceeded the reasonable time referred to in Article 6 para. 1 of the Convention. He proposed that the cases be referred back to the Amsterdam Court of Appeal to have the consequences of this excess determined. Following hearings in both cases on 19 January 1993 the Supreme Court, however, rejected the applicants' appeals in cassation on 25 May 1993. It held, inter alia, that the Court of Appeal had correctly found no violation of Article 6 para. 1 of the Convention. As regards the period of time between the lodging of the appeals in cassation and the judgments of the Supreme Court, that court found that neither this delay in itself nor the delay as a part of the entire proceedings had exceeded a reasonable time. COMPLAINTS The applicants complain under Article 6 para. 1 of the Convention that the criminal charges against them have not been determined within a reasonable time. The complaint concerns both the total duration of the proceedings of almost seven and a half years and the time taken between the various courts concerned, in particular the period between the applicants' acquittal by the Alkmaar Regional Court on 27 June 1989 and the appeal proceedings before the Court of Appeal of Amsterdam on 25 April 1991, and the period between the appeals in cassation lodged by the applicants on 10 May 1991 and the hearing of these appeals before the Supreme Court on 19 January 1993. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 13 July 1993 and registered on 23 August 1993. On 11 January 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The Government's written observations were submitted on 22 April 1995, after an extension of the time-limit fixed for that purpose. The applicants replied on 3 July 1995. THE LAW The applicants complain of the length of the criminal proceedings against them. They invoke Article 6 para. 1 (Art. 6-1) of the Convention, which provides, insofar as relevant: "1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ..." 1. The respondent Government argue in the first place that the applicants can no longer be regarded as victims within the meaning of Article 25 (Art. 25) of the Convention in view of the reduction of the sentences imposed on the applicants by the Court of Appeal in connection with the undesirably protracted length of the criminal proceedings. In this respect they submit that the maximum sentences which may be imposed for the offences concerned are a six year term of imprisonment or a fine of 100,000 Dutch guilders. In the opinion of the Government, considerable leniency was exercised in sentencing, which provided a substantial level of compensation for any damage the applicants may have suffered as a result of the length of the criminal proceedings. The applicants refute this argument, arguing that the Court of Appeal gave no indication of the extent to which the duration of the proceedings played a part. Furthermore, the fine imposed on the first applicant was also tempered because he had no previous criminal convictions. The applicants further submit that criminal courts in the Netherlands almost never impose maximum penalties, and certainly not on first offenders. In addition, they allege that the improprieties which were ultimately declared proven were of such minor importance that, if certain guidelines which came into force in 1993 had already been applicable in 1985, they would not even have led to a prosecution. The applicants conclude that there is no question of the penalties having genuinely been reduced because the reasonable time requirement had been exceeded. The Commission recalls that an applicant can no longer claim to be a victim of the failure to observe the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of the Convention if his sentence has been reduced in an express and measurable manner after a judicial finding concerning the undue length of the proceedings (cf. No. 17661/91, Dec. 31.3.93, D.R. 74 p. 156). The Commission notes, however, that the Court of Appeal in the present case expressly denied a violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the applicants' complaint of the length of the proceedings. The Supreme Court endorsed this view. Consequently, there is no acknowledgement, either expressly or in substance, of a violation of the Convention and in these circumstances the Commission finds it unnecessary to examine whether the sentences imposed by the Court of Appeal may be considered as constituting redress (cf. No. 21961/93, Dec. 28.2.96, unpublished). Moreover, in respect of the time which had elapsed following the lodging of the appeals in cassation the Supreme Court found that neither this delay in itself nor the proceedings as a whole had exceeded a reasonable time. Accordingly, the applicants can still claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention of a breach of Article 6 para. 1 (Art. 6-1) of the Convention. 2. As regards the substance of the applicants' complaint, the Government observe in relation to the period of the preliminary judicial investigation that a massive investigation into tax fraud by five bulb-producing companies and their respective directors had taken place. The investigation and prosecution called for a meticulous checking of the records in the extensive files of the suspect companies and the questioning of many witnesses. The Government, furthermore, do not believe that the proceedings in chambers concerning the applicants' objections in relation to the committal for trial and the summons respectively took an unreasonably long time. They reiterate that adequate redress was provided by the reduction of the sentences imposed by the Court of Appeal. The Government submit, taking into account the fact that the first applicant was not being held in detention, that it cannot be said that there was any contravention of the provisions of the Convention as a result of the passage of time between the lodging of the appeals in cassation and the hearing of these appeals. The applicants concede that the cases at issue were originally complex in terms both of the facts and of the law. They argue, however, that the delays which occurred cannot principally be ascribed to this complexity, since, in its judgment of 6 December 1988, the Supreme Court answered the legal issues involved, and after the preliminary judicial investigation had been closed no further factual enquiries were made, with the exception of the customary factual enquiry at the hearings. Having regard, inter alia, to the unnecessarily long and unexplained periods of inactivity between the first instance proceedings and the appeal and between the appeal and the cassation proceedings, the applicants maintain their contention that the total duration of the proceedings was such that it exceeded a reasonable time. After an examination of the complaint in the light of the parties' submissions, the Commission considers that it raises issues of fact and law requiring an examination of the merits. The application cannot, therefore, be declared 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, by a majority, 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)
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