Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 22046/93

H.J.B.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 11 April 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 6-20) . . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 21-38). . . . . . . . . . . . . . . . . . . . . . . . 4

A. Complaint declared admissible

(para. 21) . . . . . . . . . . . . . . . . . . . . . . . 4

B. Point at issue

(para. 22) . . . . . . . . . . . . . . . . . . . . . . . 4

C. Article 6 para. 1 of the Convention

(paras. 23-37) . . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION

(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . 7

I. INTRODUCTION

1. The present Report concerns Application No. 22046/93, introduced

on 31 March 1993 and registered on 11 June 1993.

The applicant is a Dutch citizen, born in 1943 and residing in

Amsterdam.

The applicant was represented before the Commission by

Mr. J. Groen, a lawyer practising in The Hague.

The respondent Government were represented by their Agent,

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

2. On 12 October 1994 the Commission (Second Chamber) decided to

communicate the application, which concerns a complaint regarding the

length of criminal proceedings, to the Government. Following an

exchange of written observations, the application was declared

admissible on 4 July 1995. 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 11 April 1996 in accordance with

Article 31 para. 1 of the Convention, the following members being

present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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. Between 1 October 1982 and the beginning of 1983 the applicant

worked for a Dutch company with limited liability, Y., in the

Netherlands. In 1983 he moved to Belgium.

7. In 1983 the applicant founded and, until 1985, was managing

director of a Belgian advertising company with limited liability, X.

8. In December 1985 the Dutch tax authorities and the Government

Audit Department (Rijksaccountantsdienst) investigated the Y. company.

As a result of their findings, the Fiscal Intelligence and

Investigation Department (Fiscale Inlichtingen en Opsporingsdienst -

hereinafter referred to as "FIOD") started an investigation in August

1986 into allegations of fraud perpetrated by the Y. company. In the

course of this investigation a large number of people who had been

involved with the Y. company over the years were heard. In

September 1986 the accounts of the Y. company were confiscated by the

FIOD.

9. On 25 November 1986 the applicant, who in the meantime had

returned to the Netherlands, was questioned by officers of the FIOD,

since it had appeared from the Y. company's accounts that the X.

company had charged the Y. company more for certain services than other

companies had done for similar services.

10. Before being questioned by the FIOD, the applicant was informed

that he was under no obligation to answer the questions put to him. The

applicant made a statement and admitted having drawn up falsified

invoices for the Y. company but refused to answer questions about

certain particular invoices since, at that time, his accounts were not

available to him. He stated he would revert to the matter together with

his lawyer. He was also confronted with an incriminating statement made

by one of the founders of the Y. company to the FIOD on

24 November 1986, claiming that the applicant had committed fraudulent

acts. The applicant refused to sign the minutes of the questioning

without previously having consulted his lawyer.

11. On 25 February 1987 the FIOD questioned the applicant, in the

presence of his lawyer, for a second time. He was again informed that

he was under no obligation to answer the questions put to him. The

applicant answered certain questions and informed the FIOD that he was

unable to consult his accounts, since these were held by his Belgian

accountant who refused to hand them over unless the applicant would pay

him an outstanding debt. The applicant again refused to sign the

minutes of the questioning, although he declared their contents to be

correct.

12. On 9 March 1987 the applicant was arrested and detained on remand

on suspicion of fraud. According to the Government he was released on

17 March 1987; the applicant claims, however, that he was released on

14 March 1987.

13. The FIOD closed its investigation at the end of May 1987 and the

resulting comprehensive minutes, dated 26 May 1987, were received by

the Prosecution Department (Openbaar Ministerie) of Amsterdam on

29 July 1987. These comprehensive minutes contained, inter alia, the

records of the interviews of the FIOD with the applicant which had

taken place on 25 November 1986, 25 February and 9 March 1987. In these

records the applicant is referred to as a suspect.

14. On 27 December 1988 the applicant was summoned to appear on

17 January 1989 before the Regional Court (Arrondissementsrechtbank)

of Amsterdam on charges of fraud.

15. The hearing on 17 January 1989 was adjourned by the Regional

Court in accordance with a request by the applicant's counsel, who

stated that he had received the case-file so late that he had been

unable to prepare the defence adequately.

16. A hearing took place on 11 April 1989. After having questioned

the applicant, the Regional Court adjourned the proceedings as the

available time was too short. Further hearings took place on 23 May,

4 July and 5 September 1989, during which the Regional Court heard a

number of witnesses at the request of the applicant's co-defendant. The

Regional Court also heard these witnesses in the criminal case against

the applicant.

17. On 19 September 1989 the Regional Court convicted the applicant

of fraud and incitement to fraud, and sentenced him to eighteen months'

imprisonment. In its judgment the Regional Court deemed the period

during which the Prosecution had been in possession of the case-file

without any investigation having taken place to have been undesirably

long ("onwenselijk lang"), but it held that this period had

nevertheless not exceeded a reasonable time.

18. The applicant, on 21 September 1989, and the prosecution, on

29 September 1989, filed an appeal against this judgment with the Court

of Appeal (Gerechtshof) of Amsterdam. On 25 June 1991 a hearing was

held before the Court of Appeal.

19. On 9 July 1991 the Court of Appeal quashed the judgment of

19 September 1989, convicted the applicant of fraud and incitement to

fraud and sentenced him to eight months' imprisonment. The Court of

Appeal rejected the applicant's argument that the prosecution should

be declared inadmissible as it could no longer be held that the

criminal charges against him would be determined within a reasonable

time as required by Article 6 para. 1 of the Convention. It held in

this respect that the proceedings at issue had started on 9 March 1987

with the applicant's arrest and not on 25 November 1986, when he was

questioned for the first time, since from this questioning he could not

reasonably have deduced that criminal charges would be brought against

him.

20. The applicant's appeal in cassation was rejected by the Supreme

Court (Hoge Raad) on 15 December 1992. As regards the applicant's

complaint of excessive length of the criminal proceedings against him,

the Supreme Court accepted the Court of Appeal's findings.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

concerning the length of the criminal proceedings against him.

B. Point at issue

22. The only point at issue is whether the length of the criminal

proceedings in the present case exceeded the "reasonable time"

requirement referred to in Article 6 para. 1 Art. 6-1) of the

Convention.

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

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

relevant, reads:

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

everyone is entitled to a ... hearing within a reasonable time

by (a) ... tribunal established by law."

Period to be taken into consideration

24. The applicant submits that the criminal proceedings against him

started on 25 November 1986 when he was questioned by fiscal

investigation authorities and he was informed that he was not obliged

to answer. In this respect the applicant also refers to the

comprehensive minutes of the investigation by the FIOD in which he is

referred to as a suspect.

25. The Government submit that a criminal charge against the

applicant only existed from the moment of his arrest on 9 March 1987.

They argue that the FIOD's interviews with the applicant on

25 November 1986 and 25 February 1987 were conducted in the context of

an audit at the Y. company in connection with suspected tax fraud, in

which the applicant had been mentioned as someone who might have been

involved in fraudulent activities. The mere fact that he was informed

at the beginning of these interviews that he was not obliged to answer

does not, in the Government's view, mean that there was a criminal

charge against him at that moment or that his prosecution was in

prospect.

26. According to the case-law of the Convention organs, the period

to be taken into consideration under Article 6 para. 1 (Art. 6-1) must

be determined in an autonomous manner and not on the basis of the rules

in domestic law. It 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 prosecuting authorities as a result

of a suspicion against him (cf. Eur. Court H.R., Eckle judgment of 15

July 1982, Series A no. 50, p. 33, para. 73; No. 14723/89, Dec. 9.7.92,

D.R. 73 p. 81).

27. The Commission finds that the applicant should be considered as

having been substantially affected by his questioning on

25 November 1986. In this respect the Commission notes that the

applicant was at that time informed that he was not obliged to answer

the questions put to him and, furthermore, that he was confronted with

a statement from another suspect which incriminated him.

28. Accordingly, the Commission finds that the relevant time began

to run when the applicant was first interviewed by FIOD officers on

25 November 1986 and ended with the Supreme Court's decision of

15 December 1992. The proceedings thus exceeded six years.

Reasonableness of the length of the proceedings

29. The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to its complexity, the

conduct of the parties and the conduct of the authorities dealing with

the case (cf. Eur. Court H.R., Boddaert judgment of 12 October 1992,

Series A no. 235-D, p. 82, para. 36).

30. The applicant submits that the investigation by the FIOD may have

been complex, but he adds that this investigation had been completed

by the end of May 1987 whereas he did not receive a summons to appear

before the Regional Court until 27 December 1988. The applicant also

argues that the period which elapsed between 21 September 1989 when he

lodged an appeal against the decision of the Regional Court and the

hearing before the Court of Appeal on 25 June 1991 was unreasonably

long.

31. The Government contend that the investigation by the fiscal

authorities was complex and extensive. They allege that, insofar as

there can be said to have been any delay in this case, this is at least

partly attributable to the applicant's counsel, who, during the

hearings before the Regional Court, repeatedly asked for the case to

be adjourned and who did not ask the Regional Court to refrain from the

hearing of certain witnesses whose testimony had become unnecessary in

light of the fact that the applicant had already confessed to the

offence.

32. The Commission considers that the investigation carried out by

the fiscal authorities into the Y. company may have involved a certain

complexity, involving as they did the questioning of a large number of

people and the examination and analysis of seized accounts.

33. As regards the conduct of the applicant, the Commission notes

that the hearing scheduled to take place on 17 January 1989 before the

Regional Court of Amsterdam was postponed until 11 April 1989 at the

request of the applicant's defence counsel. This delay of almost three

months may therefore be attributed to the applicant.

34. The Commission cannot subscribe to the Government's point of view

that any delay caused by the decision of the Regional Court to hear

certain witnesses may be attributed to the applicant who failed to ask

the Regional Court to refrain from the hearing of these witnesses. In

this respect, the Commission notes that it was the applicant's co-

defendant who had asked for these witnesses to be heard and it was the

Court who decided to hear them also in relation to the case against the

applicant. In these circumstances the applicant cannot be considered

responsible for any delay which may have resulted from the hearing of

these witnesses.

35. As regards the conduct of the authorities, the Commission notes

that the investigation was completed by the end of May 1987. However,

the applicant was not summoned to appear before a court until

27 December 1988, i.e. one year and seven months later. The Commission

further notes that a period of one year and nine months elapsed between

the filing of an appeal on 21 September 1989 against the decision of

the Regional Court and the hearing of the appeal before the Court of

Appeal on 25 June 1991. The Government have offered no explanation for

these delays.

36. The Commission reaffirms that it is for Contracting States to

organise their legal systems in such a way that their courts can

guarantee the right of everyone to obtain a final decision in the

determination of a criminal charge against him within a reasonable time

(cf. Eur. Court H.R., Baggetta judgment of 25 June 1987, Series A

no. 119, p. 32, para. 23).

37. In the light of the criteria established by case-law and having

regard to the circumstances of the present case, the Commission

considers that the length of the proceedings was excessive and failed

to meet the "reasonable time" requirement.

CONCLUSION

38. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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H.J.B. v. THE NETHERLANDS

H.J.B. v. THE NETHERLANDS

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