Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 21351/93

J.J.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 15 October 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-28). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16-21) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 22-28) . . . . . . . . . . . . . . . . . . . . . 3

III. OPINION OF THE COMMISSION

(paras. 29-39). . . . . . . . . . . . . . . . . . . . . . . . 5

A. Complaint declared admissible

(para. 29) . . . . . . . . . . . . . . . . . . . . . . . 5

B. Point at issue

(para. 30) . . . . . . . . . . . . . . . . . . . . . . . 5

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

(paras. 31-38) . . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION

(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6

DISSENTING OPINION OF MR. P. LORENZEN JOINED BY . . . . . . . . . . 7

MM. S. TRECHSEL, G. JÖRUNDSSON AND M.P. PELLONPÄÄ

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . 9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Dutch citizen, born in 1942 and resident in

Weiteveen, the Netherlands. He is a professional tax consultant.

3. The application is directed against the Netherlands. The

respondent Government were represented by their Agent,

Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the applicant's complaint of unfair criminal

proceedings in that he had no opportunity to respond to the written

submissions of the Advocate General at the Supreme Court. The applicant

invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 12 November 1992 and registered

on 9 February 1993.

6. On 29 November 1994, the case was transferred from the Second

Chamber to the Plenary Commission, by decision of the latter. On

7 December 1994, the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 28 February 1995.

The applicant did not submit observations in reply but he informed the

Commission by letter of 3 July 1995 that he wished to pursue his

application.

8. On 16 October 1995, the Commission declared admissible the

applicant's complaint under Article 6 para. 1 of the Convention in

respect of his not having had the opportunity to respond to the written

observations of the Advocate General at the Supreme Court. It declared

inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 27 October 1995 and they were invited to submit such

further information or observations on the merits as they wished.

Neither party availed itself of this possibility.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, 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

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

12. The text of this Report was adopted on 15 October 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 14 December 1989, the tax inspector sent a supplementary

income tax assessment to the applicant. In accordance with Dutch rules

on taxation, a fiscal penalty was imposed, which raised the amount due

by 100%. The penalty amounted to 38.656 Dutch guilders.

17. On 20 December 1989, the applicant lodged an appeal against the

tax assessment with the Court of Appeal (Gerechtshof) of Leeuwarden.

By letter of 21 December 1989, the registrar of the Court of Appeal

requested the applicant to pay a court registration fee (griffierecht)

of 75 Dutch guilders pursuant to Section 5 of the Administrative

Decisions Appeals Act in Taxation Cases (Wet Administratieve

Rechtspraak Belastingzaken; hereafter referred to as "WARB").

18. On 23 March 1990, the appeal was declared inadmissible because

the applicant had failed to pay the court registration fee. The

applicant lodged an objection (verzet) against this decision with the

Court of Appeal of Leeuwarden. On 26 October 1990, the Court of Appeal

rejected the objection as ill-founded.

19. Thereupon, the applicant lodged an appeal in cassation with the

Supreme Court (Hoge Raad). He submitted that the non-payment of the

court registration fee was caused by an error on the part of his bank,

for which he could not be held responsible. He further argued that the

levying of court registration fees in cases of this kind was contrary

to Article 6 para. 1 of the Convention.

20. In the proceedings before the Supreme Court the Advocate General

(Advocaat-Generaal) at the Supreme Court submitted his written

observations (conclusie) on 19 November 1991. These observations

comprised of 19 pages and advised the Supreme Court to reject the

appeal in cassation.

21. On 17 June 1992, the Supreme Court rejected the appeal in

cassation.

B. Relevant domestic law

22. Pursuant to Section 23 of the National Taxation Act (Algemene Wet

inzake Rijksbelastingen) a tax debtor can lodge an objection

(bezwaarschrift) against an assessment of taxes with the tax inspector.

Against the inspector's decision on an objection an appeal lies with

the Court of Appeal.

23. However, it is also possible to appeal directly to the Court of

Appeal against a tax assessment without having first lodged an

objection to the inspector. Against the judgment of the Court of Appeal

an appeal in cassation lies with the Supreme Court.

24. Parties to tax proceedings are the tax authorities and the

natural or legal person whose taxes are assessed.

25. After the hearing before the Supreme Court, or in the absence of

a hearing after the written submissions of the parties to the

proceedings have been received by the Registrar of the Supreme Court,

the Procurator General, if he has indicated that he wishes to be heard,

will submit his written observations to the Supreme Court (Section 24

WARB). After the submission of these observations the Supreme Court

will deliberate in chambers (raadkamer). The Procurator General does

not participate in these deliberations.

26. If the Supreme Court decides to quash the judicial decision

complained of, it can either decide the case itself, or, in cases where

a decision on the merits depends on questions of fact, refer the case

back to the Court of Appeal which took the impugned decision or to

another Court of Appeal (Section 25 WARB).

27. According to Section 3 of the Judicial Organisation Act (Wet op

de Rechterlijke Organisatie) the functions of the public prosecution

department (openbaar ministerie) are carried out ("wordt uitgevoerd")

by the procurator general at the Supreme Court, by the procurators

general at the Courts of Appeal (gerechtshoven) and, insofar as the

lower courts are concerned, by the public prosecutors (officieren van

justitie). Pursuant to Section 4 of the Judicial Organisation Act the

public prosecution department has to be heard in cases where legal

provisions require this.

28. The Procurator General at the Supreme Court, or the Advocates

General (Advocaten Generaal) who are also competent to fulfil his

functions, submits observations to the Supreme Court in, inter alia,

criminal and civil cases to advise this Court. These observations are

submitted in the shape of a treatise containing references to case-law

and legal literature relevant to the question of law at issue (G.J.M.

Corstens, Het Nederlandse Strafprocesrecht, Gouda Quint b.v. Arnhem

1993, pages 106 and 110).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

29. The Commission has declared admissible the applicant's complaint

of unfair criminal proceedings in that he did not have the opportunity

to respond to the written observations of the Advocate General at the

Supreme Court.

B. Point at issue

30. Accordingly, the issue to be determined is whether there has been

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

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

31. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows:

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

him, everyone is entitled to a fair ... hearing ... by [a]

tribunal ..."

32. The applicant argues that in the proceedings before the Supreme

Court he should have been given the opportunity to respond to the

written observations of the Advocate General at the Supreme Court.

33. In their observations on the admissibility and merits of the

application of 28 February 1995, the Government submitted that

following the Borgers v. Belgium judgment (Eur. Court HR, judgment of

30 October 1991, Series A no. 214-B), the Supreme Court had decided

that in criminal cases the written observations of the Procurator

General or Advocate General at the Supreme Court would always be sent

to the persons concerned before judgment was given. However, in the

opinion of the Government, the proceedings at issue did not concern the

determination of a criminal charge since the sole object of the

deliberations was to determine whether the Court of Appeal had been

right in declaring inadmissible the applicant's appeal against the tax

assessment with a 100% surcharge because he had failed to pay the court

fees. Therefore, Article 6 para. 1 (Art. 6-1) of the Convention did not

require that the applicant be given the opportunity to reply to the

written observations of the Advocate General.

34. The Commission finds that the fact that the present proceedings

before the Supreme Court were limited to a preliminary issue, i.e. the

question whether the Court of Appeal had correctly declared the

applicant's appeal inadmissible for failure to comply with a procedural

requirement, cannot automatically lead to the finding that the

proceedings no longer involved a determination of a criminal charge

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

Having regard to Section 25 of the WARB, the Commission considers that

the main object of the proceedings before the Supreme Court remained

the determination of a criminal charge within the meaning of Article 6

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

35. The Commission has had regard to the Court's judgments in the

cases of Borgers v. Belgium (loc. cit.) and Vermeulen v. Belgium

(judgment of 20 February 1996, to be published in Reports 1996). The

Commission notes furthermore that the function of the public

prosecution department at the Supreme Court is comparable to that of

the procureur général at the Belgian Court of Cassation.

36. However, contrary to the facts in the Borgers case, the

Procurator General or the Advocate General in the Netherlands does not

take part in the deliberations of the Supreme Court (see para. 25). The

Commission notes that the Court attached considerable relevance to this

aspect in its Borgers judgment since it found above all that the

participation of the avocat général in the deliberations of the Cour

de Cassation had increased the inequality of arms. However, in its

Vermeulen v. Belgium judgment, the Court found that the impossibility

to reply to the submissions of the avocat général in itself amounted

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

that this breach in question was aggravated by the avocat général's

participation in the court's deliberations (loc. cit., paras. 33, 34).

37. The Commission notes in the present case that in his written

observations the Advocate General advised the Supreme Court to reject

the applicant's appeal in cassation. The applicant was not given the

opportunity to reply to these observations, nor did the relevant legal

provision provide for a copy of the observations to be transmitted to

the applicant in order for him to submit observations in reply

(see para. 25).

38. Like the Court in the Borgers judgment, the Commission cannot see

the justification for such a restriction on the rights of the defence

in the present case. Once the Advocate General had made submissions

unfavourable to the applicant, the latter had a clear interest in being

able to submit his observations on them before argument was closed

(loc. cit., p. 32, para. 27). Consequently, the Commission finds that

the proceedings at issue did not comply with the requirements of

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

CONCLUSION

39. The Commission concludes, by 26 votes to 4, that in the present

case there has been a 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. P. LORENZEN JOINED BY

MM. S. TRECHSEL, G. JÖRUNDSSON AND M.P. PELLONPÄÄ

I regret that I am not able to share the conclusion of the

majority that there has been a violation of Article 6 para. 1 of the

Convention in the present case.

The proceedings before the Court of Appeal concerned an

assessment of the applicant's income tax including a 100% surcharge

which had been imposed on the basis that the applicant's failure to pay

sufficient taxes was due to his gross negligence or intent. I agree

with the majority that those proceedings - taken into account the

punitive character of the surcharge - concerned the determination of

a "criminal charge" within the meaning of Article 6 para. 1 of the

Convention (cf. Eur. Court HR, Bendenoun v. France judgment of

24 February 1994, Series A no. 284, p. 20, para. 47). Due to the

applicant's failure to pay a court registration fee of 75 Dutch

guilders his appeal was, however, declared inadmissible. The Court of

Appeal rejected an objection against this decision as ill-founded and

never considered the merits of the criminal proceedings. The appeal in

cassation to the Supreme Court concerned only the legality of the

levying of a court registration fee and the question whether the

applicant, in all circumstances, could be held responsible for the non-

payment of the fee.

In my opinion, a decision of a national court regarding the

formal requirements for the lodging of an appeal in a criminal case do

not involve the determination of a criminal charge within the meaning

of Article 6 para. 1 of the Convention. Whether they concern the

payment of registration fees, the observance of time-limits, the

production of certain documents or other similar requirements should

not be considered decisive. The Commission has constantly held that a

rejection of claims on procedural grounds is neither a determination

of a dispute on civil rights and obligations nor of a criminal charge

(cf. e.g. No. 12624/87, Dec. 10.7.89, D.R. 62 p. 207). I see no reason

to depart from this case-law which is based on careful considerations

with regard to the reasonableness of the safeguards under Article 6

para. 1 of the Convention. There are no valid reasons to widen the

scope of applicability of that provision so as to include preliminary

decisions relating to procedural conditions for court proceedings.

Furthermore, national courts may as a result encounter considerable

difficulties in securing an efficient administration of justice - not

least in respect of the right to a public hearing. In my view, the

Commission and Court of Human Rights also have to bear in mind the

enormous workload of most of the tribunals in the High Contracting

Parties and avoid imposing unnecessary burdens upon them by an

excessive interpretation of Article 6.

The fact that the Dutch Supreme Court was apparently empowered

under Section 25 of the WARB to rule on the merits of the case, if the

non-payment of the registration fee had not been considered a

procedural obstacle, cannot lead to a different result. Even assuming

that the Supreme Court in the circumstances of the present case - where

the Court of Appeal had not ruled on the merits - might in principle

have exercised that power, it did in fact not do so.

For these reasons I do not find a violation of Article 6 para. 1

of the Convention in the present case.

Menu

J.J. v. THE NETHERLANDS

J.J. v. THE NETHERLANDS

LEXI