EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 22531/93

Arie Mantel and Mantel Holland Beheer B.V.

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. 6-25) 2

III. OPINION OF THE COMMISSION

(paras. 26-40) 5

A. Complaint declared admissible

(para. 26) 5

B. Point at issue

(para. 27) 5

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

(paras. 28-39) 5

CONCLUSION

(para. 40) 7

APPENDIX: DECISION OF THE COMMISSION AS TO THE

      ADMISSIBILITY OF THE APPLICATION 8

I. INTRODUCTION

1. The present Report concerns Application No. 22531/93 introduced on 13 July

1993 against the Netherlands and registered on 26 August 1993.

The first applicant is a Dutch citizen, born in 1943 and resident in

Andijk, the Netherlands. The applicant company is a Dutch company with limited

liability, having its registered seat in Andijk. The first applicant is one of

the directors of the applicant company.

The applicants are represented before the Commission by Mr F. van Schaik,

a lawyer practising in Berkel en Rodenrijs, the Netherlands.

The Government of the Netherlands are represented by their Agent, Mr H.

von Hebel of the Netherlands Ministry of Foreign Affairs.

2. The application, which relates to the length of proceedings (Article 6

para. 1 of the Convention) was communicated to the Government on 11 January

1995. Following an exchange of written observations, it was declared admissible

on 15 May 1996. The decision on admissibility is appended to this Report.

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. ŠVÁBY

P. LORENZEN

E. BIELI?NAS

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. 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.

7. On 2 December 1985 the home of the first applicant and the premises of the

applicant company were searched.

8. 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.

9. 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).

10. On 1 June 1987 the applicant company lodged an objection against this

decision with the Regional Court (Arrondissementsrechtbank) of Alkmaar.

Following a hearing on 25 June 1987, the Regional Court in chambers decided on

30 June 1987 to discontinue the proceedings (buitenvervolgingstelling) against

the applicant company. The public prosecutor appealed against this decision on

the same day.

11. 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.

12. On 13 July 1987 the first applicant lodged an objection against the

indictment with the Alkmaar Regional Court. A hearing took place on 4 August

1987. On 13 August 1987 the Regional Court in chambers decided to discontinue

the proceedings against the first applicant. The public prosecutor appealed

against this decision on 14 August 1987.

13. 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.

14. The applicants' appeals in cassation against the Court of Appeal's

decisions were rejected by the Supreme Court (Hoge Raad) on 6 December 1988.

15. On 13 June 1989 hearings took place before the Alkmaar Regional Court in

the cases concerning the criminal charges against the applicants.

16. 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.

17. 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.

18. 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.

19. When it imposed its sentence on the first applicant, the Court of Appeal

held:

"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 fact 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."

20. 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.

21. 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.

22. On 10 May 1991 both applicants filed an appeal in cassation.

23. 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. He also requested copies of the Court of Appeal's judgments of 6 May 1991

which, in spite of repeated requests, had not yet been made available. On 21

September 1992 the Registry of the Supreme Court received the case-files.

24. 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.

25. 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.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

26. The Commission has declared admissible the applicants' complaint that the

criminal proceedings against them were not determined within a reasonable time.

B. Point at issue

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

complained of has exceeded the "reasonable time" requirement contained in

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

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

28. The relevant part of the Article 6 para. 1 (Art. 6-1) of the Convention

provides as follows:

"1. In the determination of ... any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time by (a) ...

tribunal ..."

29. The Government submit in relation to the period of the preliminary

judicial investigation that a massive investigation into tax fraud by five bulb-

growing 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. They further maintain that the applicants received compensation for

the protracted length of the proceedings up to the judgment of the Court of

Appeal. Finally, they deny that there was a breach of Article 6 para. 1 (Art. 6-

1) as a result of the passage of over twenty months between the lodging of the

appeal in cassation and this appeal being heard.

30.  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 settled 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.

31. The Commission notes that the proceedings at issue started on 2 December

1985 when the first applicant's house and the applicant company's premises were

searched. They ended with the Supreme Court's judgment of 25 May 1993 and thus

lasted seven years and almost six months.

32. 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).

33.  The Commission observes that it is not disputed between the parties that

the case was of a complex and elaborate character. The suspicion against the

applicants concerned white collar crime, such as forging documents and fraud.

Such offences are often purposely conducted by means of complex transactions in

order to escape the control of the investigating authorities. The investigations

at issue involved five companies and their directors.

34. The Commission further considers that the applicants did not unreasonably

contribute to the overall length of the criminal proceedings by lodging

objections against their committal for trial, although this may have resulted in

a certain delay.

35. In respect of the conduct of the Dutch authorities, the Commission notes

that the period between the lodging of the appeals on 11 July 1989 by the public

prosecutor against the judgments of the Regional Court and the hearing on appeal

before the Court of Appeal on 25 April 1991 was one year and nine and a half

months. It is true that the Court of Appeal mitigated the sentence which it

imposed on the applicants in view of the "undesirable" length of the

proceedings. However, the Commission observes that this mitigation cannot be

measured since the Court of Appeal did not indicate what sentence it would have

imposed in ordinary circumstances. Furthermore, in respect of the first

applicant the Court of Appeal mitigated the sentence also in view of the fact

that the conviction concerned a first offence.

36. A subsequent delay occurred after the applicants had filed their appeals

in cassation on 10 May 1991. It appears that the applicants were not provided

with copies of the Court of Appeal's judgments of 6 May 1991 until after 8 March

1992 when their lawyer wrote to the President of the Court of Appeal.

Furthermore, the case-files were not received by the Registry of the Supreme

Court until 21 September 1992, i.e. more than one year and four months later.

The Supreme Court delivered its judgments two years and two weeks after the

appeals in cassation had been lodged on 25 May 1993.

37. The Commission does not consider that these delays can be said to be

related to the complex nature of the criminal proceedings at issue. It notes,

furthermore, that the Government have offered no explanation for these delays.

38. The Commission reiterates that Article 6 para. 1 (Art. 6-1) of the

Convention imposes on the Contracting States the duty to organise their legal

system in such a way that their courts can meet each of its requirements (cf.

Eur. Court HR, Bunkate v. the Netherlands judgment of 26 May 1993, Series A no.

248-B, p. 31, para. 23).

39. Having regard to all the circumstances and the overall length, the

Commission considers that in view of the delay which had already occurred at the

appeal stage and the subsequent delay in the proceedings before the Supreme

Court, the criminal proceedings against the applicants were not determined

within a reasonable time.

CONCLUSION

40. The Commission concludes, by 13 votes to 1, that in the present case there

has been a 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