Lexploria

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

Menu

W.H. v. THE NETHERLANDS

W.H. v. THE NETHERLANDS

LEXI