AS TO THE ADMISSIBILITY OF
Application No. 34549/97
by Mathijs H. and Antonius W.M. MEULENDIJKS
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 9 January 1997 by
Mathijs H. and Antonius W.M. MEULENDIJKS against the Netherlands and
registered on 17 January 1997 under file No. 34549/97;
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 applicants are both Dutch nationals, born in 1920 and 1957
respectively, and reside in Heeze, the Netherlands. The applicants
jointly run a timber merchant's business. In the proceedings before the
Commission, they are represented by Mr J.C.B. Geerts, a lawyer
practising in Rosmalen.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
a. The criminal investigation and proceedings
On 7 December 1988, a preliminary judicial investigation
(gerechtelijk vooronderzoek) was opened against the applicants' company
on suspicion of forgery committed for fiscal purposes. On
13 December 1988, in the context of this investigation, the applicants'
business premises were searched and a major part of the office records
was seized by the investigating authorities.
By letters of 16 and 23 December 1988, the applicants' lawyer
unsuccessfully requested the public prosecutor to return the items
seized on 13 December 1988 in order to allow the company to continue
its business activities.
At some unspecified point in time, the applicants' lawyer was
informed by the investigating judge (rechter-commissaris) that the
seized office records would be returned after the final examination
(slotverhoor). This final examination took place on 28 February 1991.
On 19 March 1991, the applicants' firm, as a separate legal
person, received a formal notification that no further criminal
proceedings would be brought against it (kennisgeving van niet verdere
vervolging).
Since the seized office records had still not been returned, the
applicants' lawyer informed the investigating judge by letters of
25 March and 8 April 1991 that, if the office records would not be
returned before a certain date, a formal complaint (beklag) about the
continuation of the seizure would be filed with the Regional Court. At
some later point in time part of the seized office records was
returned. The return of the remaining part was refused.
At some unspecified point in time, the first applicant was
summoned to appear on 23 May 1991 before the Regional Court
(Arrondissementsrechtbank) of 's-Hertogenbosch on charges under Article
225 of the Criminal Code (Wetboek van Strafrecht) and Article 68 of the
General State Taxation Act (Algemene Wet inzake Rijksbelastingen).
Criminal proceedings were also brought against the second applicant.
In the subsequent criminal proceedings against the first
applicant, the Court of Appeal (Gerechtshof) of 's-Hertogenbosch, in
its judgment of 27 April 1994, declared the prosecution inadmissible
for non-compliance with the reasonable time requirement under Article
6 para. 1 of the Convention. The criminal proceedings brought against
the second applicant ended with the decision of the Court of Appeal of
27 April 1994 in which the summons against the second applicant was
declared null and void also on grounds of failure to respect the
reasonable time requirement.
b. The proceedings on social security contributions
By letters of 7 July 1989 and 28 March 1990, the applicants
objected to correction demands (correctienota's) over the years 1985-
1988 for social security contributions which had been sent by the
Occupational Association for the Timber and Furniture Industry and
Timber Wholesale Trade (Bedrijfsvereniging voor de Hout- en
Meubelindustrie en Groothandel in Hout, hereinafter referred to as "the
Occupational Association"). The applicants denied having paid
undeclared wages or having been involved in excessive reimbursement of
expenses. In these letters, the applicants requested the Occupational
Association to give a formal confirmation (voor beroep vatbare
beschikking) of these correction demands.
On 7 March 1990, the Occupational Association requested the
applicants to substantiate their objections to the demands. After
having requested a delay, the applicants replied to this request on
30 August 1990 and further offered a compromise solution. On
31 October 1990, after part of the seized office records had been
returned to them, the applicants submitted additional reasons for their
objections to the demands to the Occupational Association.
On 7 November 1990, an administrator of the Occupational
Association drafted an internal report and, on 20 June 1991 the so-
called "Small Commission" (Kleine Commissie) of the Occupational
Association approved the internal advice.
On 3 July 1991, the Occupational Association issued the formal
confirmation with the reasons for its decision. According to this
decision, the applicant had to pay 288,224.28 Dutch guilders for social
security contributions on grounds of excessive reimbursement of
expenses which were considered as wages by the Occupational Association
and payment of undeclared wages.
The applicants filed an appeal against this decision with the
Regional Court of 's-Hertogenbosch on 29 July 1991 and further
substantiated their grounds for appeal on 27 August 1991. On
10 January 1992, the Occupational Association replied in writing to the
applicants' submissions on appeal. The applicants responded in writing
on 29 June 1992 and the Occupation Association's further written
reaction was submitted on 18 February 1993.
Following a hearing held on 6 April 1993, the Regional Court
rejected this appeal by judgment of 17 May 1993. The applicant filed
a further appeal with the Central Appeals Tribunal (Centrale Raad van
Beroep).
On 18 June 1993, the applicants submitted their grounds on appeal
to the Central Appeals Tribunal, to which the Occupational Association
replied on 24 December 1993. On 6 January 1995, the applicants made
further submissions to the Central Appeals Tribunal to which the
Occupational Association replied on 20 January, 12 October and
7 November 1995. The applicant submitted further information on
10 May 1996.
Following a hearing held on 30 May 1996 in the course of which
three witnesses and an expert were heard upon the applicants' request,
the Central Appeals Tribunal, in its judgment of 11 July 1996, quashed
both the decision of 3 July 1991 and the judgment of 17 May 1993.
Insofar as the applicants had complained of the delay between
their request for and the issuance of the formal confirmation by the
Occupational Association, the Court of Appeal - in the light of the
European Court's findings in its Schouten and Meldrum v. the
Netherlands judgment of 9 December 1994 - noted that, following the
applicants' request of 7 July 1989, the Occupational Association had
requested the applicants on 7 March 1990 to substantiate their
objections and that, after having requested a delay, the applicants had
replied to this request on 30 August 1990 and had further offered a
compromise solution. The Central Appeals Tribunal further noted that
on 31 October 1990 the applicants sent additional reasons for their
objections, that an internal report was drafted on 7 November 1990
which was submitted to the Small Commission of the Occupational
Association and that the formal confirmation was issued on 3 July 1991.
Noting the complexity of the case and the contents of the
applicants' submissions, the Central Appeals Tribunal held that,
although the decision process took place with little diligence, the
Occupational Association had not acted so slowly that Article 6 of the
Convention had been violated.
COMPLAINTS
The applicants complain under Article 6 of the Convention that
there has been an unreasonable delay between their request for formal
confirmation of the decision of the Occupational Association and the
actual issuance of this confirmation.
The applicants further complain under Article 6 of the Convention
that the length of the subsequent proceedings before the Regional Court
and the Central Appeals Tribunal exceeded a reasonable time.
The applicants finally complain under Article 6 of the Convention
that, in the proceedings on the correction demands, the principle of
equality of arms has been violated in that during these proceedings,
despite their repeated requests to this effect, they had no full access
to their seized office records which contained relevant information for
the proceedings on the correction demands.
THE LAW
The applicants complain under Article 6 (Art. 6) of the
Convention that the proceedings which ended with the judgment of 11
July 1996 of the Central Appeals Tribunal exceeded a reasonable time
and that they did not receive a fair trial in that the principle of
equality or arms was disrespected in these proceedings.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing within a
reasonable time by a ... tribunal established by law."
Insofar as the applicants complain of the fairness of the
proceedings at issue, the Commission notes that the Central Appeals
Tribunal, in its judgment of 11 July 1996, quashed both the decision
of 3 July 1991 and the judgment of 17 May 1993.
In these circumstances, the Commission is of the opinion that the
applicants can no longer claim to be a victim within the meaning of
Article 25 (Art. 25) of the Convention as regards the fairness of these
proceedings.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
Insofar as the applicants complain of the length of the
proceedings, in particular of the delay between 7 July 1989, when they
submitted their request to the Occupational Association, and
3 July 1991, when this formal confirmation was issued, the Commission
refers to the Schouten and Meldrum against the Netherlands judgment of
9 December 1994 (Series A no. 304). It decides to give notice of this
part of the application to the respondent Government in accordance with
Rule 48 para. 2(b) of its Rules of Procedures and to invite them to
submit their observations in writing on the admissibility and merits
on this part of the application.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicants'
complaints in respect of the length of the proceedings; and
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy