EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 23229/94

H.H.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 1 July 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-38) 3

III. OPINION OF THE COMMISSION

(paras. 39-55) 8

A. Complaint declared admissible

(para. 39) 8

B. Point at issue

(para. 40) 8

C. As regards Article 6 para. 1 of the Convention

(paras. 41-54) 8

CONCLUSION

(para. 55) 10

DISSENTING OPINION OF MR H. DANELIUS JOINED BY

MM E. BUSUTTIL, G. JÖRUNDSSON, A. WEITZEL, J.-C. SOYER,

L. LOUCAIDES, M.A. NOWICKI AND D. ŠVÁBY 11

APPENDIX  I : PARTIAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION 12

APPENDIX II : FINAL DECISION OF THE COMMISSION AS TO THE        

ADMISSIBILITY OF THE APPLICATION 23

I. INTRODUCTION

1. The present Report concerns Application No. 23229/94 introduced on 3

November 1993 against the Netherlands and registered on 10 January 1994.

The applicant is a Dutch national born in 1945 and resident in Blaricum,

the Netherlands.

The applicant was initially represented before the Commission by Mr J.B.

Boone, a lawyer practising in Wijk bij Duurstede, the Netherlands, who was

succeeded by Mr J. Italianer, a lawyer practising in Amsterdam.

The respondent Government were represented by their Agent, Mr H. von

Hebel, of the Netherlands Ministry for Foreign Affairs.

2. On 22 February 1995 the Second Chamber relinquished jurisdiction in the

case to the Plenary Commission. On 27 February 1995 the application, insofar as

it related to the length of proceedings, was communicated to the Government and

declared inadmissible as to the remainder. Following an exchange of written

observations, the complaint relating to the length of proceedings (Article 6

para. 1 of the Convention) was declared admissible on 13 May 1996. The decisions

on admissibility are appended to this Report. The applicant has submitted

observations on the merits of the case on 25 July 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, after deliberating, adopted this Report on 1 July 1997 in

accordance with Article 31 para. 1 of the Convention, the following members

being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENI?

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELI?NAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

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 his application, in which he relies on Article 6 para. 1 of the

Convention, the applicant complains of the length of criminal proceedings.

7. On 5 December 1983, the applicant was arrested and subsequently detained

on remand on suspicion of tax fraud and forgery. He was released on 9 December

1983.

8. Also on 5 December 1983, a lawyer who was at the same time the applicant's

financial adviser, was arrested on suspicion of having been an accessory or

accomplice to forgery, or having procured the commission of forgery, and on

suspicion of having been an accessory to tax fraud. In addition to the applicant

and this lawyer, there were six other suspects, one of whom was a company with

limited liability.

9. On 9 December 1983, the investigating judge (rechter-commissaris) of the

Regional Court (Arrondissementsrechtbank) of Amsterdam, at the request of the

public prosecutor (officier van justitie), opened a preliminary judicial

investigation (gerechtelijk vooronderzoek) to investigate the suspicions against

the applicant.

10. On 21 March 1984, the investigating authorities sent a request for

international legal assistance (rechtshulpverzoek) to the competent British

authorities, requesting, inter alia, the examination of witnesses and

information about a number of companies. On 13 March 1985, the British

authorities informed the Dutch authorities that they had been unable to carry

out the request.

11. On 10 July 1984, a request for international legal assistance was sent to

the competent authorities in Luxembourg in regard to the examination of

witnesses and information about certain bank accounts. On 29 April 1985, the

request was refused by the Luxembourg authorities.

12. On 11 December 1984, the applicant filed a request under Section 180 of

the Code of Criminal Procedure (Wetboek van Strafvordering) with the Regional

Court of Amsterdam, asking the Court to order the acceleration of the

investigation.

13. On 24 April 1985, the preliminary judicial investigation was closed. The

applicant was notified of the closure on 17 May 1985.

14. On 19 June 1985, the applicant was summoned to appear before the Regional

Court of Amsterdam on 5 September 1985 on five charges of tax fraud and forgery.

The offences the applicant was charged with had allegedly been committed between

February 1977 and September 1983.

15. On 20 June 1985, the applicant lodged an objection (bezwaarschrift)

against the indictment with the Regional Court of Amsterdam. The Regional Court

examined the objection at a hearing on 17 September 1985 and rejected it on 21

October 1985.

16. The applicant filed an appeal against the decision of 21 October 1985 with

the Court of Appeal (Gerechtshof) of Amsterdam. On 18 April 1986, the Court of

Appeal quashed the Regional Court's decision, referred the case to the

investigating judge at the Regional Court of Amsterdam, and ordered that

witnesses, proposed by the applicant, be heard and that the Regional Court of

Amsterdam take a new decision on the applicant's objection against the

indictment lodged on 20 June 1985 after the examination of the witnesses.

17. In December 1986, the public prosecutor decided not to pursue the charges

(sepot) against the lawyer and the other six suspects in view of the perceived

impossibility of concluding the criminal proceedings against these suspects

within a reasonable time within the meaning of Article 6 of the Convention. The

charges against the applicant, however, were not relinquished.

18. In January 1987, the investigating judge summoned the witnesses whose

examination had been requested by the applicant. The applicant and his lawyer

were invited to attend the hearings but did not appear, nor did they send the

investigating judge questions in writing to be put to the witnesses. On 7

December 1989, the applicant stated before the Regional Court of Amsterdam that

he and his lawyer had not attended the hearings because they had assumed that

the charges brought against the applicant would be relinquished as well.

19. On 23 April 1987, the Regional Court of Amsterdam was due to re-examine

the objection against the indictment which had been lodged by the applicant on

20 June 1985. At the applicant's request the hearing was adjourned.

20. On 11 November 1987, the applicant's objection against the indictment was

once again due to be re-examined by the Regional Court. This hearing was

adjourned at the request of the public prosecutor.

21. On 8 January 1988, the Regional Court re-examined the applicant's

objection against the indictment. On 19 January 1988, it rejected the objection.

22. The applicant's appeal against the decision of 19 January 1988 was

rejected by the Court of Appeal on 29 June 1988 following a hearing on 22 April

1988. The applicant's subsequent appeal in cassation against the decision of the

Court of Appeal was rejected on 6 June 1989 by the Supreme Court (Hoge Raad).

23. After the Supreme Court had given its decision on the objection against

the indictment lodged by the applicant on 20 June 1985, the criminal case itself

could be dealt with by the Regional Court of Amsterdam.

24. The applicant was summoned to appear before the Regional Court of

Amsterdam on 26 October 1989. The Court commenced its examination of the case

but, at the request of the applicant, whose lawyer had to leave the Court

session on account of obligations elsewhere, and the public prosecutor, who

wished to summon witnesses and to add documents to the case-file, the

examination was adjourned until 7 December 1989.

25. On 7 December 1989, the Regional Court resumed its examination of the case

but adjourned it until 15 January 1990, ordering that a witness who had failed

to appear and whom the public prosecutor insisted should be heard be brought

before the Court by force. On 15 January 1990, the witness again not having

appeared, the Regional Court rejected the public prosecutor's request for

another adjournment, a request which was made in order to hear the witness at a

later date.

26. In his final address to the Court, the public prosecutor stated, inter

alia, that in his view the applicant had objected to the indictment because he

intended to delay the proceedings. He submitted that the applicant and his

lawyer had not attended the hearings before the investigating judge and that the

referral of the case by the Court of Appeal to the investigating judge, in order

to have the latter examine witnesses at the request of the defence, had proved

useless.

27. On 29 January 1990, the Regional Court acquitted the applicant of two

charges, convicted him of the remaining three, and sentenced him to nine months'

imprisonment, suspended pending a probation period of two years, and a fine of

750,000 Dutch guilders to be replaced by six months' imprisonment in case of

non-payment. When it imposed its sentence, the Court took into account, inter

alia, that the long period of time which had elapsed between the applicant's

arrest and the Court's decision could not solely be attributed to the applicant.

28. Both the applicant and the public prosecutor lodged an appeal against the

judgment with the Court of Appeal of Amsterdam. The Court of Appeal started its

examination of the case on 17 June 1991 but adjourned it until 5 September 1991

in view of the non-appearance of a witness whom the applicant insisted be heard.

The Court of Appeal ordered that the witness be brought before it by force.

29. On 5 September 1991, the Court of Appeal resumed its examination of the

case. At the applicant's request it examined four witnesses, but the witness

mentioned above had not appeared. Because the applicant insisted that this

witness be heard, the Court adjourned its examination until 18 November 1991,

ordering that the witness be brought before the Court by force. The Court of

Appeal stated that should the witness not be present on 18 November 1991, it

would not further adjourn its proceedings.

30. On 18 November 1991, the witness was, again, not present. In his

pleadings, the applicant requested the Court of Appeal to declare the

prosecution inadmissible because the criminal charges against him had not been

determined within a reasonable time.

31. On 2 December 1991, the Court of Appeal quashed the Regional Court's

judgment, acquitted the applicant of two charges and convicted him of the

remaining three.

32. The Court of Appeal found that some undesirably long periods of delay had

occurred at the stage of the examination of the objection against the

indictment. It held, however, that the criminal charges against the applicant

had been determined within a reasonable time. The Court stated that it would

take into account the duration of the proceedings in the determination of the

sentence.

33. When it imposed its sentence on the applicant, the Court of Appeal held,

inter alia:

"The accused repeatedly and on a large scale withheld money from

society.... In this way, the accused aggrieved the community in a serious way.

Apparently, the accused let himself be guided by the objective of financial gain

at the expense of the community. Under these circumstances, the imposition of a

penalty which deprives [him of his] freedom, in combination with a substantial

fine, is in every way justified. In view of the facts that in the meantime a

very long time has elapsed since the commission of the offences at issue, that

it has become plausible that the accused has suffered psychological detriment

because of the legal proceedings in question and the accompanying publicity, and

that the accused has not previously been convicted of a criminal offence, the

Court finds it appropriate to decide that the imprisonment to be imposed shall

be suspended."

34. The applicant was sentenced to nine months' imprisonment, suspended

pending a probation period of two years, and a fine of half a million Dutch

guilders to be replaced by six months' imprisonment in case of non-payment.

35. On 10 December 1991, the applicant filed an appeal in cassation with the

Supreme Court. He complained, inter alia, of the length of the criminal

proceedings against him and argued that the prosecution should have been

declared inadmissible by the Court of Appeal for this reason.

36. The Supreme Court was scheduled to hear the case on 22 December 1992, but

at the request of the applicant, the case was adjourned to 2 February 1993.

37. On 20 April 1993, the Advocate General (Advocaat-Generaal) at the Supreme

Court submitted his written conclusions. These were sent to the applicant's

lawyer, who replied to them on 10 May 1993.

38. On 1 June 1993, the Supreme Court rejected the applicant's appeal in

cassation. It upheld the reasoning of the Court of Appeal. The Supreme Court

added:

"Even if the period of time between the lodging of the appeal in

cassation and its examination during a session of the Supreme Court is taken

into account, it cannot be said that the trial of this case has not taken place

within a reasonable time within the meaning of ... Article 6 of the Convention

..."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

39. The Commission has declared admissible the applicant's complaint that his

case was not heard within a reasonable time.

B. Point at issue

40. The only point at issue is whether the length of the proceedings

complained of 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

41. 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 ..."

42. The proceedings in question concerned the criminal charges against the

applicant and they accordingly fall within the scope of Article 6 para. 1 (Art.

6-1) of the Convention.

43. These proceedings, which began on 5 December 1983 and ended on 1 June

1993, lasted nine years and almost six months.

44. 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

H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

45. The applicant submits that the case was not particularly complex since the

facts at issue overlapped each other to a large extent. As regards the

preliminary judicial investigation the applicant argues that its long duration

was imputable to the investigating authorities who, inter alia, made a request

for judicial assistance to the Luxembourg authorities while they must have known

that no such assistance would be forthcoming in view of the nature of the

alleged offences.

46. In respect of the position adopted by the applicant or his counsel, the

applicant submits that an accused can never be reproached for having made use of

the legal remedies available to him, such as the lodging of an objection against

the indictment. Moreover, in his view the delays which occurred at this stage of

the proceedings were not the result of the recourse to this remedy but rather of

the unacceptably long periods which elapsed between the various phases in the

processing thereof. Finally, the applicant submits that any requests for

adjournments made on his behalf are offset against numerous attempts to expedite

the proceedings which were made by his counsel during the various hearings and

in writing on 11 December 1984.

47. According to the Government, the case involved a very large and complex

criminal investigation into tax fraud and forgery. This investigation related,

amongst other things, to income tax and company tax returns for five separate

years. Requests for assistance also had to be made in the course of the

investigation to the authorities of the United Kingdom and Luxembourg. The

investigation moreover focused on a number of suspects and involved the

questioning of numerous witnesses and experts.

48. The Government further submit that the position adopted by the defence

significantly contributed to the length of the proceedings. To begin with, the

proceedings in the criminal case itself were considerably delayed as a result of

the objection lodged by the applicant against the indictment. The Government

also wish to stress that the applicant slowed down the proceedings on a number

of occasions by requesting adjournments.

49. The Commission considers that the case was complex, concerning as it did

"white collar" crimes, i.e. tax fraud and forgery. Such offences are often

purposely conducted by means of complex transactions in order to escape the

control of the investigating authorities.

50. As regards the conduct of the applicant, the Commission notes that he

lodged an objection against the indictment. The Commission also observes that,

although this step in itself cannot be qualified as unreasonable, these

proceedings did contribute to the overall length of the proceedings to a

considerable extent. The Commission observes in this respect that, having lodged

this objection, the applicant or his lawyer subsequently failed to attend the

hearing of witnesses who had been summoned at their request in January 1987

(para. 18). Moreover, referring to the facts set out in paras. 19, 24 and 36,

the Commission notes that the applicant was responsible for a number of

adjournments and delays, totalling about ten months, albeit that the delay from

26 October 1989 until 7 December 1989 had also come about at the request of the

public prosecutor (para. 24).

51. A further cause of delay was the failure of a witness to appear (paras.

25, 28 and 29). About four months was taken up with adjournments of hearings

before the Regional Court and the Court of Appeal in order for this witness to

be examined.

52. As regards the conduct of the authorities the Commission notes that

although some of the delays were attributable to them these were not decisive

for the overall length of the proceedings. In this respect the Commission refers

in particular to the nine months which elapsed between the decision of the Court

of Appeal of 18 April 1986 that witnesses were to be heard and the summoning of

these witnesses by the investigating judge in January 1987, and the period of

seventeen months between the judgment of the Regional Court of 29 January 1990

and the first hearing on appeal before the Court of Appeal on 17 June 1991.

53. In assessing the length of the proceedings, the Commission has finally

considered that the applicant was only detained for four days and that his

sentence was mitigated by the Court of Appeal in view of the lapse of time in

his case.

54. In view, therefore, of the particular complexity of the case which

required an elaborate investigation in combination with the short period of pre-

trial 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

55. The Commission concludes, by 24 votes to 8, that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

(Or. English)

DISSENTING OPINION OF MR H. DANELIUS JOINED BY

MM E. BUSUTTIL, G. JÖRUNDSSON, A. WEITZEL, J.-C. SOYER,

L. LOUCAIDES, M.A. NOWICKI AND D. ŠVÁBY

I have voted against the conclusion of the Commission that there has been

no violation of Article 6 para. 1 of the Convention in the present case. My

reasons are as follows.

I first recall that the Supreme Court expressly stated that it could not

be said that the trial had not taken place within a reasonable time within the

meaning of Article 6 of the Convention. Consequently, there is not in the

present case any acknowledgement at the national level, either expressly or in

substance, of a breach of the Convention (cf. Eur. Court HR, Eckle v. Germany

judgment of 15 July 1982, Series A no. 51, p. 30, para. 66). No remedy for the

alleged violation of Article 6 has therefore been provided by the domestic

courts, although the Court of Appeal did mitigate the sentence in view of the

very long time which had elapsed since the offences had been committed.

As regards the conduct of the proceedings, I note that the Court of Appeal

itself found that some undesirably long periods of delay had occurred at the

stage of the examination of the objection against the indictment. In fact, the

proceedings regarding this matter alone lasted for about four years.

Moreover, after the objection against the indictment had been finally

rejected, it took another four years to reach a final determination of the

criminal charges. It is true that at that stage the applicant could be held

responsible for certain delays by asking for adjournments and that other delays

were due to the fact that a witness was not available. However, there were other

delays which were attributable to the courts. I note, in this regard, the period

of seventeen months which elapsed between the Regional Court's judgment and the

first hearing before the Court of Appeal. I also consider that in view of the

long time which had already elapsed before the charges were examined by the

courts, special efforts should have been made to expedite the remaining

proceedings.

The total length of the proceedings was about nine and a half years, and I

consider that such a length, in order to be acceptable, would call for special

justification in a serious criminal case like the present one whose outcome was

of considerable importance to the applicant. I cannot find that there were

circumstances justifying this long duration and therefore conclude that the

requirements of Article 6 para. 1 of the Convention as regards a determination

of criminal charges within a reasonable time were not respected in this case.