EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 21961/93
W.H.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 9 April 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. ESTABLISHMENT OF THE FACTS
(paras. 6-23) . . . . . . . . . . . . . . . . . . . . . . . . . . .2
III. OPINION OF THE COMMISSION
(paras. 24-46). . . . . . . . . . . . . . . . . . . . . . . . . . .6
A. Complaint declared admissible
(para. 24). . . . . . . . . . . . . . . . . . . . . . . . . .6
B. Point at issue
(para. 25). . . . . . . . . . . . . . . . . . . . . . . . . .6
C. As regards Article 6 para. 1 of the Convention
(paras. 26-45). . . . . . . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 46). . . . . . . . . . . . . . . . . . . . . . . . . .9
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . . . 10
I. INTRODUCTION
1. The present Report concerns Application No. 21961/93 introduced
on 26 May 1993 against the Netherlands and registered on 2 June 1993.
The applicant is a Dutch national born in 1943 and resident in
Belgium.
The applicant is represented before the Commission by
Mr. P.J. Baauw, a lawyer practising in Utrecht, the Netherlands.
The Government of the Netherlands are represented by their
Agent, Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign
Affairs.
2. The application was communicated to the Government on
2 September 1994. Following an exchange of written observations, the
application relating to the length of proceedings (Article 6 para. 1
of the Convention) was declared admissible on 28 February 1996. The
decision on admissibility is appended to this Report. The parties
have submitted observations on the merits of the case, the Government
on 23 April 1996 and the applicant on 24 June 1996.
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 9 April 1997 in accordance with
Article 31 para. 1 of the Convention, the following members being
present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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. In the late 1970's and early 1980's, the applicant was the
director of, inter alia, the cleaning agencies S. and S.N., both
companies with limited liability. In September 1980, the Dutch tax
authorities inspected the accounts of another cleaning company, W.N.
This inspection showed that the latter company was a subcontractor of
the S. and S.N. companies. Between 1981 and 1984 the tax authorities
inspected the accounts of the S. and S.N. companies and all their
subcontractors.
7. On 31 December 1981, the tax inspector issued the first of a
number of supplementary tax assessments to the companies of which the
applicant was the director. In accordance with Dutch tax laws, these
assessments were increased by 100% implying the commission of fiscal
offences or gross negligence. The companies started fiscal
proceedings challenging the supplementary tax assessments.
8. As the fiscal authorities failed to decide the challenges
brought by the companies, the S. and S.N. companies started summary
proceedings (kort geding) before the President of the Regional Court
(Arrondissementsrechtbank) of The Hague. By judgment of 15 May 1985,
the President ordered the fiscal authorities to determine the
objections against the tax assessments brought by the S. and S.N.
companies within four weeks, thus allowing the companies to submit
their fiscal dispute to the judicial authorities, in case the
companies would consider this to be appropriate.
9. The companies concerned withdrew the proceedings concerning the
supplementary tax assessments in the course of 1993 and 1994.
10. On 28 June 1982, a discussion took place between two inspection
officers of the Audit Division of the Department of Direct Taxes
(Afdeling Controle der Directe Belastingen) of The Hague, i.e.
Mr. G. and Mr. D., and the S.N. company's lawyer. In the course of
this discussion, Mr. H., the company's accountant, and the applicant
were invited to answer a number of questions put by these officers.
11. On 1 September 1982, Mr. G. of The Hague Department of Direct
Taxes was transferred to the Fiscal Intelligence and Investigation
Department (FIOD).
12. In May 1984 the Audit Division of the Department of Direct Taxes
in The Hague handed the investigation against, inter alia, the
companies of which the applicant was director over to the FIOD.
13. On 14 June 1984, the FIOD interrogated the applicant as a
suspect. In the same month the FIOD seized his accounts for
investigation purposes. Between 27 February 1985 and 10 June 1986 the
FIOD questioned about 70 persons in connection with the investigation
against the applicant.
14. On 8 May 1985, the applicant was arrested on suspicion of fraud
and detained on remand. He was conditionally released on
17 June 1985. The conditions for his release, inter alia, a bank
guarantee of 200.000 Dutch guilders, were lifted on 11 December 1985.
15. On 10 May 1985 a judicial investigation (gerechtelijk
vooronderzoek) against the applicant was opened, during which the
investigating judge heard the applicant on four occasions. The
investigating judge further examined 25 witnesses and 3 experts, most
of whom at the applicant's request.
16. The judicial investigation was closed in January 1989 and the
applicant was subsequently summoned to appear before the Regional
Court (Arrondissementsrechtbank) of The Hague on 13 April 1989 on
five counts of fraud, and for participation in a criminal
organisation.
17. The applicant's objection (bezwaar) against the summons was
rejected after a hearing, and on 18 May 1989 the Regional Court
started its examination of the substance of the charges. Another
hearing was held on 27 July 1989. On 10 August 1989 the Regional
Court acquitted the applicant of participation in a criminal
organisation, convicted him of five counts of fraud and sentenced him
to twenty-four months' imprisonment, six months of which suspended
pending a probation period of two years, and a fine of 500.000 Dutch
guilders. The time the applicant had spent in pre-trial detention was
to be deducted from his prison sentence.
18. Both the applicant and the public prosecutor filed an appeal
against this judgment with the Court of Appeal (Gerechtshof) of The
Hague.
19. On 11 July 1991 the Court of Appeal quashed the Regional Court's
judgment, convicted the applicant of three counts of fraud, acquitted
him of two counts of fraud and, in accordance with Section 63 of the
Criminal Code (Wetboek van Strafrecht) after having noted a previous
conviction, sentenced him to six months' imprisonment, three months
of which were suspended pending a probation period of two years, and
a fine of 25.000 Dutch guilders.
20. As to the argument that the prosecution should be declared
inadmissible because the criminal charges had not been determined
within a reasonable time, the Court of Appeal found that the criminal
proceedings had started on 14 June 1984, when the applicant had been
questioned for the first time. It further held that:
[translation]
"It concerns the administration of a number of closely
intertwined companies with limited liability which attempted to
conceal that association from the outside world. At the outset
of the investigation against the suspect this was still far
from clear and it was also unclear that use had been made of
fake invoices (...). In view of the complexity of the
investigation, the reasonable time within the meaning of
Article 6 of the European Convention of Human Rights has not
been exceeded at that stage of the present case. (...) The
defence attributes the long duration of the judicial
investigation also to the inferior quality of the investigation
by the Fiscal Information and Investigation Department and the
limited time of which the investigating judge disposed. Be that
as it may, the long duration is primarily caused by the
defence's wish to have many witnesses, who had already been
interrogated, examined again very extensively. Even though the
investigation by the FIOD may not have been flawless, the
judicial authorities are certainly not exclusively or mainly to
blame for the fact that this complex case has taken much time.
Also in the appeal proceedings in the present criminal case the
reasonable time has not been exceeded, considering, on the one
hand, the duration of this period, and, on the other hand, the
grave facts at issue. Taking all the aforementioned into
account, the total length of the proceedings up to this present
day in this criminal case has not exceeded a reasonable time
either. The court refers to what it has stated above as regards
the complexity of the case."
21. As regards the sentence to be imposed, the Court of Appeal held,
inter alia,:
[translation]
"On the one hand, the Court is of the opinion that an
unconditional prison sentence is in every respect justified,
taking into account the seriousness of the proven facts. The
suspect was the actual director of S. and S.N. In that capacity
the suspect has committed, for an extended period of time and
on a large scale, evasion of paying due social security
contributions and due corporation taxes, in order to line the
purses of these companies and/or benefit the people who were in
charge of these companies, all to the detriment of third
parties.
On the other hand, the Court takes into account the time that
has elapsed since the commission of the offences the suspect
was charged with. The court will therefore now proceed to
impose a prison sentence of a duration to be stated below half
of which will be conditional and this in combination with a
fine."
22. The applicant's subsequent appeal in cassation was rejected by
the Supreme Court (Hoge Raad) on 1 December 1992. Insofar as the
applicant repeated his complaint that the criminal charges against
him had not been determined within a reasonable time, the more so as
the proceedings against him should be considered to have started on
31 December 1981, the Supreme Court accepted the reasoning of the
Court of Appeal.
23. Pursuant to the relevant rules contained in the General State
Taxes Act (Algemene Wet inzake Rijksbelastingen), the 100 % increase
of the additional tax assessments ceased to apply as the facts on
which this increase was based had led to a separate irrevocable
substantive judgment.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
24. The Commission has declared admissible the applicant's complaint
that his case has not been heard within a reasonable time.
B. Point at issue
25. The only point at issue is whether the length of the proceedings
complained of has exceeded the "reasonable time" requirement referred
to in Article 6 para. 1 (Art. 6-1) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
26. The relevant part of Article 6 para. 1 (Art. 6-1) of the
Convention provides as follows :
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by (a) ... tribunal ..."
27. The proceedings in question concerned the determination of tax
related offences. The proceedings accordingly fall within the scope
of Article 6 para. 1 (Art. 6-1) of the Convention.
28. It must first be determined at which point in time these
proceedings started for the purposes of Article 6 para. 1 (Art. 6-1)
of the Convention.
29. The applicant submits that the proceedings against him started
on 31 December 1981, when he received the first additional tax
assessment increased by 100%. He states that, although no penalty was
explicitly imposed with this assessment, the increase it contained
was implicitly tantamount to a penalty.
30. The respondent Government submit that the criminal proceedings
at issue started on 14 June 1984, when the FIOD examined the
applicant as a suspect. Before that date it was by no means obvious
that steps would be taken against the applicant under criminal law.
31. According to the Government, the applicant confuses two
procedures, namely on the one hand the administrative law procedure
in which the Inspector of Direct Taxes imposes a fine and, on the
other hand, a criminal procedure instituted by the public
prosecutions department.
32. The Commission recalls that the period to be taken into
consideration under Article 6 para. 1 (Art. 6-1) of the Convention
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 prosecution authorities as a result of a
suspicion against him (cf. Eur. Court HR, Eckle v. Germany judgment
of 15 July 1982, Series A no. 50, p. 33, para. 75).
33. The Commission notes that, at the final stage of the fiscal
investigations against the companies with limited liability of which
the applicant was the director, suspicions arose against the
applicant in person. He was subsequently interrogated as a suspect on
14 June 1984 and shortly after that date a criminal judicial
investigation against him was opened. The Commission does not find it
established that the applicant in his personal capacity, rather than
in his capacity as director, has been substantially affected by the
fiscal investigation prior to that date. The Commission therefore
accepts that the period to be examined under Article 6 para. 1
(Art. 6-1) of the Convention started on 14 June 1984.
34. The Commission considers that the proceedings at issue ended on
1 December 1992, when the Supreme Court rejected the applicant's
appeal in cassation. The proceedings therefore lasted almost eight
years and six months.
35. As regards the duration of the criminal proceedings against him,
the applicant submits that in virtually all stages of the proceedings
there were excessively long periods of inactivity imputable of the
prosecution and judicial authorities.
36. The Government submit that it was only the preliminary judicial
investigation which took longer than desirable. However, given the
very large and complex criminal investigation in which the FIOD heard
more than 70 persons, and the investigating judge heard 25 witnesses
and three experts most of whom at the request of the defence, the
Government are of the opinion that it cannot be said that this
investigation was not completed within a reasonable time. The
Government finally submit that the proceedings before the Dutch
courts did not last excessively long.
37. In view of these elements and further taking into account that
the applicant spent only just one month in pre-trial detention, the
Government are of the opinion that the proceedings did not exceed a
reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention.
38. The Commission recalls that the reasonableness of proceedings
must be assessed in the light of the particular circumstances of the
case and with the help of the following criteria: the complexity of
the case, the conduct of the parties and the conduct of the
authorities dealing with the case (see Eur. Court HR, Vernillo
v. France judgment of 20 February 1991, Series A no. 198, p. 12,
para. 30).
39. At the outset, the Commission considers that the main feature
of the case was its elaborate and complex character. The suspicion
against the applicant concerned white collar crimes, i.e. large scale
tax evasion involving a number of companies. Such offences are often
purposely conducted, and were so in this case, by means of complex
transactions in order to escape the control of the investigating
authorities.
40. The Commission finds that the applicant did not unreasonably
contribute to the overall length of the criminal proceedings against
him by requesting the examination of witnesses before the
investigating judge, although his requests may have resulted in a
certain delay.
41. In respect of the conduct of the Dutch authorities, the
Commission notes that between 14 June 1984 - when the applicant was
interrogated for the first time - and January 1989 - when the
judicial investigation against him was closed - the applicant's
accounts had been seized for verification, a considerable number of
persons had been heard by the FIOD and 25 witnesses and three experts
had been heard before the investigating judge. The first hearing
before the Regional Court took place on 13 April 1989.
42. Although the duration of the pre-trial investigation appears
comparatively long, it is in the Commission's opinion explained by
the particular complexity of the case which required a very elaborate
investigation.
43. The Commission finds that thereafter the authorities conducted
the proceedings with relative speed. The Regional Court gave its
judgment on 10 August 1989, the Court of Appeal on 11 July 1991 and
the Supreme Court on 1 December 1992.
44. In assessing the length of the proceedings, the Commission has
finally considered that the applicant was only detained for a period
of one month and nine days and that his sentence was mitigated by the
Court of Appeal in view of the lapse of time in his case.
45. In view of the particular complexity of the case which required
an elaborate investigation in combination with the relatively short
period of the applicant's detention and the reasons given for the
mitigation of the sentence, the Commission does not find that there
has been a violation of the applicant's right to a hearing within a
reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention (cf. R.B. v. Switzerland, Comm. Report 24.5.95;
CM Resolution 15.12.95, No. DH (95) 395).
CONCLUSION
46. The Commission concludes, unanimously, that there has been no
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy