Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34549/97

by Mathijs H. and Antonius W.M. MEULENDIJKS

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 January 1997 by

Mathijs H. and Antonius W.M. MEULENDIJKS against the Netherlands and

registered on 17 January 1997 under file No. 34549/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are both Dutch nationals, born in 1920 and 1957

respectively, and reside in Heeze, the Netherlands. The applicants

jointly run a timber merchant's business. In the proceedings before the

Commission, they are represented by Mr J.C.B. Geerts, a lawyer

practising in Rosmalen.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

a. The criminal investigation and proceedings

On 7 December 1988, a preliminary judicial investigation

(gerechtelijk vooronderzoek) was opened against the applicants' company

on suspicion of forgery committed for fiscal purposes. On

13 December 1988, in the context of this investigation, the applicants'

business premises were searched and a major part of the office records

was seized by the investigating authorities.

By letters of 16 and 23 December 1988, the applicants' lawyer

unsuccessfully requested the public prosecutor to return the items

seized on 13 December 1988 in order to allow the company to continue

its business activities.

At some unspecified point in time, the applicants' lawyer was

informed by the investigating judge (rechter-commissaris) that the

seized office records would be returned after the final examination

(slotverhoor). This final examination took place on 28 February 1991.

On 19 March 1991, the applicants' firm, as a separate legal

person, received a formal notification that no further criminal

proceedings would be brought against it (kennisgeving van niet verdere

vervolging).

Since the seized office records had still not been returned, the

applicants' lawyer informed the investigating judge by letters of

25 March and 8 April 1991 that, if the office records would not be

returned before a certain date, a formal complaint (beklag) about the

continuation of the seizure would be filed with the Regional Court. At

some later point in time part of the seized office records was

returned. The return of the remaining part was refused.

At some unspecified point in time, the first applicant was

summoned to appear on 23 May 1991 before the Regional Court

(Arrondissementsrechtbank) of 's-Hertogenbosch on charges under Article

225 of the Criminal Code (Wetboek van Strafrecht) and Article 68 of the

General State Taxation Act (Algemene Wet inzake Rijksbelastingen).

Criminal proceedings were also brought against the second applicant.

In the subsequent criminal proceedings against the first

applicant, the Court of Appeal (Gerechtshof) of 's-Hertogenbosch, in

its judgment of 27 April 1994, declared the prosecution inadmissible

for non-compliance with the reasonable time requirement under Article

6 para. 1 of the Convention. The criminal proceedings brought against

the second applicant ended with the decision of the Court of Appeal of

27 April 1994 in which the summons against the second applicant was

declared null and void also on grounds of failure to respect the

reasonable time requirement.

b. The proceedings on social security contributions

By letters of 7 July 1989 and 28 March 1990, the applicants

objected to correction demands (correctienota's) over the years 1985-

1988 for social security contributions which had been sent by the

Occupational Association for the Timber and Furniture Industry and

Timber Wholesale Trade (Bedrijfsvereniging voor de Hout- en

Meubelindustrie en Groothandel in Hout, hereinafter referred to as "the

Occupational Association"). The applicants denied having paid

undeclared wages or having been involved in excessive reimbursement of

expenses. In these letters, the applicants requested the Occupational

Association to give a formal confirmation (voor beroep vatbare

beschikking) of these correction demands.

On 7 March 1990, the Occupational Association requested the

applicants to substantiate their objections to the demands. After

having requested a delay, the applicants replied to this request on

30 August 1990 and further offered a compromise solution. On

31 October 1990, after part of the seized office records had been

returned to them, the applicants submitted additional reasons for their

objections to the demands to the Occupational Association.

On 7 November 1990, an administrator of the Occupational

Association drafted an internal report and, on 20 June 1991 the so-

called "Small Commission" (Kleine Commissie) of the Occupational

Association approved the internal advice.

On 3 July 1991, the Occupational Association issued the formal

confirmation with the reasons for its decision. According to this

decision, the applicant had to pay 288,224.28 Dutch guilders for social

security contributions on grounds of excessive reimbursement of

expenses which were considered as wages by the Occupational Association

and payment of undeclared wages.

The applicants filed an appeal against this decision with the

Regional Court of 's-Hertogenbosch on 29 July 1991 and further

substantiated their grounds for appeal on 27 August 1991. On

10 January 1992, the Occupational Association replied in writing to the

applicants' submissions on appeal. The applicants responded in writing

on 29 June 1992 and the Occupation Association's further written

reaction was submitted on 18 February 1993.

Following a hearing held on 6 April 1993, the Regional Court

rejected this appeal by judgment of 17 May 1993. The applicant filed

a further appeal with the Central Appeals Tribunal (Centrale Raad van

Beroep).

On 18 June 1993, the applicants submitted their grounds on appeal

to the Central Appeals Tribunal, to which the Occupational Association

replied on 24 December 1993. On 6 January 1995, the applicants made

further submissions to the Central Appeals Tribunal to which the

Occupational Association replied on 20 January, 12 October and

7 November 1995. The applicant submitted further information on

10 May 1996.

Following a hearing held on 30 May 1996 in the course of which

three witnesses and an expert were heard upon the applicants' request,

the Central Appeals Tribunal, in its judgment of 11 July 1996, quashed

both the decision of 3 July 1991 and the judgment of 17 May 1993.

Insofar as the applicants had complained of the delay between

their request for and the issuance of the formal confirmation by the

Occupational Association, the Court of Appeal - in the light of the

European Court's findings in its Schouten and Meldrum v. the

Netherlands judgment of 9 December 1994 - noted that, following the

applicants' request of 7 July 1989, the Occupational Association had

requested the applicants on 7 March 1990 to substantiate their

objections and that, after having requested a delay, the applicants had

replied to this request on 30 August 1990 and had further offered a

compromise solution. The Central Appeals Tribunal further noted that

on 31 October 1990 the applicants sent additional reasons for their

objections, that an internal report was drafted on 7 November 1990

which was submitted to the Small Commission of the Occupational

Association and that the formal confirmation was issued on 3 July 1991.

Noting the complexity of the case and the contents of the

applicants' submissions, the Central Appeals Tribunal held that,

although the decision process took place with little diligence, the

Occupational Association had not acted so slowly that Article 6 of the

Convention had been violated.

COMPLAINTS

The applicants complain under Article 6 of the Convention that

there has been an unreasonable delay between their request for formal

confirmation of the decision of the Occupational Association and the

actual issuance of this confirmation.

The applicants further complain under Article 6 of the Convention

that the length of the subsequent proceedings before the Regional Court

and the Central Appeals Tribunal exceeded a reasonable time.

The applicants finally complain under Article 6 of the Convention

that, in the proceedings on the correction demands, the principle of

equality of arms has been violated in that during these proceedings,

despite their repeated requests to this effect, they had no full access

to their seized office records which contained relevant information for

the proceedings on the correction demands.

THE LAW

The applicants complain under Article 6 (Art. 6) of the

Convention that the proceedings which ended with the judgment of 11

July 1996 of the Central Appeals Tribunal exceeded a reasonable time

and that they did not receive a fair trial in that the principle of

equality or arms was disrespected in these proceedings.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

"1. In the determination of his civil rights and obligations

... everyone is entitled to a fair ... hearing within a

reasonable time by a ... tribunal established by law."

Insofar as the applicants complain of the fairness of the

proceedings at issue, the Commission notes that the Central Appeals

Tribunal, in its judgment of 11 July 1996, quashed both the decision

of 3 July 1991 and the judgment of 17 May 1993.

In these circumstances, the Commission is of the opinion that the

applicants can no longer claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention as regards the fairness of these

proceedings.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

Insofar as the applicants complain of the length of the

proceedings, in particular of the delay between 7 July 1989, when they

submitted their request to the Occupational Association, and

3 July 1991, when this formal confirmation was issued, the Commission

refers to the Schouten and Meldrum against the Netherlands judgment of

9 December 1994 (Series A no. 304). It decides to give notice of this

part of the application to the respondent Government in accordance with

Rule 48 para. 2(b) of its Rules of Procedures and to invite them to

submit their observations in writing on the admissibility and merits

on this part of the application.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicants'

complaints in respect of the length of the proceedings; and

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

Menu

MEULENDIJKS v. THE NETHERLANDS

MEULENDIJKS v. THE NETHERLANDS

LEXI