AS TO THE ADMISSIBILITY OF
Application No. 12130/86
by U.
against the Netherlands
The European Commission of Human Rights sitting in private
on 12 March 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 February
1985 by U. against the Netherlands and registered on 5 May 1986 under
file No. 12130/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1932 and presently
residing in Oss, the Netherlands. The facts of the case, as submitted
by him, may be summarised as follows:
1. In 1972, the applicant, together with two other persons,
founded a limited liability company under Dutch law (Besloten
Vennootschap met beperkte aansprakelijkheid). The company was
involved in building activities. In 1974 the two other directors left
the company.
In 1975, a State Accountant (Rijks Accountant) drew up a report
of the account books of the firm and of the private accounts of the
partners in the firm. He concluded that the account books were very
incomplete and that it was hardly possible to get an overview of the
profits of the firm. He found out that several building activities
had been kept out of the books. This was not contested by the
applicant, who declared that one of the other directors had been
responsible for the bookkeeping.
This report formed the basis of a provisional income tax
assessment for 1974, which the Tax Authorities sent to the applicant
on 31 May 1975. The assessment amounted to DFL 59.092, a result of
an estimated income, derived from the firm, of DFL 121.400. The
firm was thought to have made a profit of DFL 270.000, but the Tax
Authorities refused to specify which transactions or projects caused
this profit. On the same day, the Tax Authorities sent the applicant
an additional assessment for 1972, to an amount of DFL 44.940 plus an
increase of DFL 22.470 and an additional assessment for 1973 to an
amount of DFL 34.543 plus an increase of DFL 17.272. On 2 June 1975
the attachment of the applicant's possessions was ordered.
The applicant submits that he had always thought that the firm
had not made any profit. Although the Tax Authorities afforded the
applicant the opportunity to prove that the assessments were not based
on correct or complete facts, they were not willing to show how they
had calculated the assessments. Nor was he provided with a copy of
the Report of the State Accountant, as this was only a document for
internal purposes.
On 17 December 1975 and 29 January 1976, the applicant appealed
to the Court of Appeal (Gerechtshof) of 's-Hertogenbosch against the
assessments for 1972 and 1973 respectively. On 30 November 1976, the
applicant's tax adviser reached a compromise with the Inspector of
Direct Taxes (Inspecteur der directe belastingen). His income for
1972, 1973 and 1974 was set at DFL 35.000. On the basis of this
income he had to pay income tax, plus an increase of 50% of the tax
assessments for 1972 and 1973. On 29 January 1977, the applicant's
adviser informed the Court of Appeal of 's-Hertogenbosch that the
appeals should be considered withdrawn.
However, the applicant alleges that the tax adviser should
only have agreed to the compromise under certain conditions, of which
the applicant had informed him. Two of these conditions were that no
increase would be imposed and that the compromise would be
reconsidered if the applicant managed to find evidence for his
allegations that the tax assessments were incorrect.
In order to gather that evidence, the applicant initiated
several proceedings. On 10 January 1979 the applicant requested the
Deputy Minister (Staatssecretaris) of Finance to send him a copy of
the report of the State Accountant of 1975. On 25 June 1979, the
Deputy Minister rejected the request, again explaining that such
reports are for internal purposes only.
On 13 December 1979, the applicant requested the Inspector of
Direct Taxes to reconsider the additional tax assessments. This was
refused by the Inspector on 27 October 1980. The applicant appealed
to the Court of Appeal of 's-Hertogenbosch against this decision. On
24 March 1983 the Court of Appeal decided not to deal with the appeal,
because a compromise had been reached and the applicant was not able
to prove that he had given clear instructions to his adviser
concerning additional conditions or that the Inspector should have had
any reasonable doubts about the adviser's competence to negotiate the
compromise. On 29 August 1984, the Supreme Court (Hoge Raad)
confirmed the judgment of the Court of Appeal.
In the meantime the applicant had collected a substantial
amount of proof indicating that most of the disputed profits had been
transferred to a separate company of one of his former co-directors.
On 28 May 1986, the applicant again requested the Deputy
Minister of Finance to send him a copy of the 1975 Report of the State
Accountant. The applicant appealed against the (implicit) refusal to
the President of the Judicial Division of the Council of State
(Afdeling Rechtspraak van de Raad van State). In March 1987, the
Deputy Minister sent the applicant a copy of the Report wherein
certain paragraphs were deleted out of respect for the privacy of
others. The President of the Judicial Division of the Council of
State decided a few days later that the paragraphs were deleted from
the Report on justifiable grounds. The applicant now appealed to the
Judicial Division of the Council of State, again requesting
communication of the missing paragraphs. On 2 March 1989, also the
Judicial Division rejected the appeal, because the Deputy Minister
could reasonably decide not to disclose the complete report in order to
protect the privacy of others.
Finally, the applicant filed a complaint against his tax
adviser with the Disciplinary Council of the Dutch Order of Tax
Consultants (Raad van Tucht van de Nederlandse Orde van
Belastingadviseurs). On 1 October 1987, the Disciplinary Council
declared the complaint partly well-founded. The applicant appealed to
the Council of Appeal (Raad van Beroep) of the Dutch Order of Tax
Consultants, which gave its decision on 14 October 1988. This Council
as well was of the opinion that the adviser should have taken more
account of the extra conditions, put forward by the applicant with
respect to the compromise.
2. The applicant's wife receives a benefit under the Act on
Benefits for Victims of Wartime Persecution (Wet uitkeringen
vervolgingsslachtoffers 1940-1945). The applicant and his wife have
lodged many complaints with several national judicial authorities
concerning the non-applicability of some of the benefits to married
women and concerning the level of these benefits. These complaints
are reiterated before the Commission.
3. On 27 March 1984 the applicant's neighbour was granted a
building permit for a garden-wall by the Municipal Authorities of
Oss. The applicant filed an objection against this permit, because
the wall reminds the applicant's wife of her internment in a Japanese
concentration camp during the Second World War. This objection was
partly accepted by the Municipal Authorities. An appeal against this
decision was rejected by the Judicial Division of the Council of State
(Afdeling Rechtspaak van de Raad van State) on 27 May 1986. On 22
April 1986 the applicant asked the Municipal Authorities of Oss to
grant him financial compensation as they had changed the zoning plan
(bestemmingsplan) permitting the building of garden-walls. On 9 July
1987 the Municipal Authorities rejected the request. The applicant
appealed to the Litigation Division of the Council of State (Afdeling
voor de geschillen van bestur van de Raad van State) against the
decision of the Municipal Authorities of Oss. The Litigation Division
annulled the decision of the Municipal Authorities on procedural
grounds.
COMPLAINTS
1. The applicant complains that his tax assessments are based on
incorrect facts and that he has been denied the possibility to prove
that the assessments were unjust. The assessments were based on a
report to which he had no access and which accordingly seriously
impeded him in challenging the assessments. As a result, he has not
had a fair hearing concerning his tax assessments and the increases
thereof. The applicant invokes Articles 3, 5 para. 1, 6 para. 1, and 8
para. 1 of the Convention and Article 1 of Protocol No. 1.
2. The applicant further complains that the Council on Benefits
for Victims of Wartime Persecution disregarded statements by experts
and doctors concerning his wife's condition and that the level of
benefits granted was too low. The applicant again invokes Articles 3,
5 para. 1, 6 para. 1, and 8 para. 1 of the Convention and Article 1 of
Protocol No. 1.
3. The applicant finally complains that the Municipal Authorities
changed the zoning plan without properly informing the population and
granted his neighbour a building permit, which was not based on the
conditions set out in the zoning plan. Furthermore, the Municipal
Authorities did not grant him compensation. He again invokes Articles
3, 5 para. 1, 6 para. 1, and 8 para. 1 of the Convention and Article 1
of Protocol No. 1.
THE LAW
1. The applicant has complained of his additional tax assessments
and the increases thereof for the years 1972, 1973 and 1974. In
particular he submits that these are based on false information which
he has not had an opportunity to disprove. He invokes several
Articles of the Convention and, in particular, Article 6 para. 1
(art. 6-1) which provides as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law. ..."
The Commission has constantly held that Article 6 (Art. 6)
is not applicable to proceedings regarding taxation (cf. No. 2552/65,
Dec. 15.12.67, Collection 26 p. 1, No. 2717/66, Dec. 6.2.69,
Yearbook 13 p. 176, No. 8903/80, Dec. 8.7.80, D.R. 21 p. 246 and
No. 9908/82, Dec. 4.5.83, D.R. 32 p. 266). It therefore follows that,
as far as the complaints relate to the tax assessments as such, this
part of the application should be declared inadmissible as being
incompatible ratione materiae with Article 6 (Art. 6) of the Convention,
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
The applicant has, however, also complained that he was
obliged to pay an increase on top of the additional assessments. The
Commission recalls that the question may arise whether the imposition
of an increase, or additional charge, could be regarded as the
determination of a criminal charge within the meaning of Article 6
para. 1 (Art. 6-1) (cf. No. 11464/85, Dec. 12.5.87, von Sydow v. Sweden
and No. 12693/87, Dec. 6.3.89, Källander v. Sweden). However, the
Commission finds that it is not necessary to determine this issue in
the present case because, even assuming that Article 6 applies to
the applicant's complaint, it is in any event manifestly ill-founded
for the following reason.
The increases formed part of the additional tax assessments,
after the Tax Authorities discovered that the accounts of the
applicant and the applicant's firm showed some serious shortcomings.
Although the applicant appealed against the additional assessments,
including the increases, these appeals were withdrawn after the
applicant's tax adviser had concluded a compromise with the Inspector
for Direct Taxes, which lowered the assessments, and thereby the
increases to a considerable extent. It must be concluded that with
that compromise the applicant accepted the increases and can therefore
no longer be considered a victim. It follows that this part of the
application is manifestly ill-founded, within the meaning of Article
27 para. 2 (Art. 27-2) of the Commission.
In respect of this complaint, the applicant also invokes
Articles 3 (Art. 3), 5 para. 1 (Art. 5-1) and 8 para. 1 (Art. 8-1)
of the Convention and Article 1 of Protocol No. 1 (P1-1). However,
the Commission finds that these complaints have not been substantiated
by the applicant.
It follows that these complaints are manifestly ill-founded,
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has also complained of the level of state
benefits for his wife and of a building permit granted to his
neighbour. He invokes Articles 3 (Art. 3), 5 para. 1 (Art. 5-1),
6 para. 1 (Art. 6-1), and 8 para. 1 (Art. 8) of the Convention, and
Article 1 of Protocol No. 1 (P1-1).
The Commission has examined these separate complaints as
submitted by the applicant. However, after considering the case as a
whole, the Commission finds that it does not disclose any appearance
of a violation of the rights and freedoms set out in the Convention.
It follows that these complaints, as a whole, are manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy