Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27943/95

by Maximilian ABAS

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 16 May 1995 by

Maximilian ABAS against the Netherlands and registered on 21 July 1995

under file No. 27943/95;

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 applicant is a Dutch national, born in 1934, and resides in

Aerdenhout. He is a former KLM pilot. In the proceedings before the

Commission, he is represented by Mr G. Spong, a lawyer practising in

The Hague.

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

summarised as follows.

A. Particular circumstances of the present case

By letter of 23 December 1977, the accountant Mr C.S. requested

the Inspector of Direct Taxes to exonerate the applicant of wage tax

(loonbelasting) on the basis of the latter having taken up residence

in the United Kingdom as from 15 November 1977.

By letter of 21 December 1981, Mr C.S. informed the Inspector of

Direct Taxes that as from 1 August 1981 the applicant had taken up

residence in Ireland and requested the Tax Inspector to continue to

exonerate him from wage tax.

During that period, the applicant paid taxes in the United

Kingdom and Ireland, respectively, as a non-domiciled resident.

On 4 September 1987, the Inspector of Direct Taxes addressed a

letter to the applicant requesting him to inform the tax authorities

whether he resided in the Netherlands or in Ireland. This letter,

insofar as relevant, reads:

(translation)

"The Inspection of Direct Taxes regularly issues decisions upon

a request of an employee who states that he moves abroad;

pursuant to such a decision the employer may cease to deduct wage

tax (the so-called Article 27 para. 3 decision).

Such a decision has also been issued to you.

In the context of a random sample investigation as to the

correctness of rendering such decisions, I would like to receive

from you, inter alia, the following information:

1. Where have you resided in Ireland as from your departure

from the Netherlands until at present?

...

8. Did you, after you left for Ireland, dispose of a car in

the Netherlands?

In asking questions I avail myself of my competence under

Article 47 para. 1 of the General State Taxes Act (Algemene Wet

inzake Rijksbelastingen)."

By letter of 5 November 1987, Mr. C.S. replied the Inspector on

behalf of the applicant. Mr. C.S. informed the Inspector that the

applicant had moved to Ireland in August 1981 and, until

1 January 1981, lived at A. street in Dublin with an Irish national.

The letter further stated that on 1 January 1981 the applicant moved

to another specified address in Ireland following the rupture of the

relationship with this Irish national. Mr. C.S. also informed the

Inspector that the applicant normally resided in Ireland if he was not

travelling.

On 21 February 1989, following the opening of a preliminary

judicial investigation (gerechtelijk vooronderzoek) against the

applicant, the home of the applicant's family in Aerdenhout (the

Netherlands) was searched by the investigating judge (rechter-

commissaris) of the Regional Court (Arrondissementsrechtbank) of

Haarlem. A number of documents were seized from which it appeared that

the applicant was in fact permanently residing in Aerdenhout.

By summons of 29 November 1991, the applicant was ordered to

appear before the Regional Court of Haarlem on 25 March 1992 on charges

of fraud and tax evasion.

On 25 March 1992, a hearing took place before the Regional Court

of Haarlem.

By judgment of 8 April 1992, the Regional Court convicted the

applicant of fraud and tax evasion and sentenced him to two years'

imprisonment and payment of a fine of 500.000 Dutch guilders. The

applicant filed an appeal.

On 8 April 1993, the Court of Appeal (Gerechtshof) of Amsterdam

quashed the Regional Court's judgment of 8 April 1992 and convicted the

applicant of fraud and fraudulent tax declarations. As regards the

imposition of the sentence, the Court of Appeal stated that, having

regard to the seriousness of the offence and sentences imposed in

similar cases, in principle a prison sentence of two years would be

appropriate. However, in view of, inter alia, the duration of the

criminal proceedings against the applicant, the Court of Appeal limited

the sentence to one year's imprisonment, of which four months suspended

pending a probation period of two years, and a fine of 500.000 Dutch

guilders.

Insofar as the applicant argued that the prosecution should be

declared inadmissible as the proceedings at issue had exceeded a

reasonable time, the Court of Appeal held that it agreed with the

applicant that the period to be taken into consideration had started

on 21 February 1989, when the applicant's home was searched.

As regards the substance of this complaint, the Court of Appeal

held that an undesirably long period had elapsed since this search but

not to the extent that on this basis the prosecution should be declared

inadmissible. The court considered in this respect that the applicant

had not been placed in pre-trial detention and that the case was

extremely complicated having required much investigation both in the

Netherlands and abroad and that it formed a part of a much broader

investigation of similar cases. The Court did, however, state that it

would take the length of the proceedings into consideration in the

imposition of the sentence.

The applicant further argued that his reply to the Inspector's

letter of 4 September 1987 should be excluded from the evidence. He

submitted that he was in a situation similar to that of a person who

is questioned as a suspect of a criminal offence and consequently

entitled to the right to silence protected by Article 29 of the Code

of Criminal Procedure (Wetboek van Strafvordering) whereas at that time

he had not been given the information referred to in Article 29

para. 2, i.e. that he was not obliged to answer any questions.

He submitted the following information on this point. In

May 1986, a civil servant of the Immigration Department of the Ministry

of Justice of Ireland had informed the Netherlands Embassy in Ireland

that many KLM pilots had notified the Irish authorities of having taken

up residence in Ireland and that the Irish authorities suspected tax

evasion. The Netherlands Embassy sought instructions from the

Netherlands authorities by letter of 26 May 1986. The Minister of

Foreign Affairs replied on 17 September 1986 that, for wage and income

tax purposes, a person is considered as residing abroad after

notification of removal from the relevant Dutch registry and

inscription in the registry of the new place of residence. The

information from the Irish authorities was transmitted to the Ministry

of Finance, where it was decided to investigate the matter, which led

to a decision taken on 27 May 1987 to open a joint investigation of a

selection of about 40 cases which resulted in addressing, on

4 September 1987, a standard letter requesting information from the

selected persons.

The Court of Appeal held that the written questions in the letter

of 4 September 1987 and the applicant's written answer could not, in

principle, be considered as a hearing within the meaning of Article 29

of the Code of Criminal Procedure. The Court of Appeal found that no

facts or circumstances had appeared on the basis of which it should be

held that the letter of 4 September 1987 had been written and sent with

the intent to gather evidence in a criminal investigation of suspicions

arisen against the applicant.

After having considered the evidence, the Court of Appeal found

it established that the applicant had in fact resided in the

Netherlands in the relevant period and not in the United Kingdom or

Ireland and that it had not been established that Mr C.S. had not acted

bona fide.

It based the applicant's conviction on, inter alia, the

applicant's confessing statements before the Court of Appeal and the

police, a statement to the police of the applicant's spouse, a

statement to the police of two domestic employees of the applicant's

family, a statement to the Irish police of the owner of the house in

Ireland where the applicant had alleged to reside, statements to the

police of a number of persons with whom the applicant had had regular

contacts in the Netherlands in the course of the relevant period, a

statement to the police by Mr C.S., a statement to the police of the

head of the KLM wage administration and several documents including,

inter alia, the applicant's study results at the University of Leiden

during the relevant period, a membership list of a golf club, and

statements on findings by police officers who had participated in the

search of the applicant's home in Aerdenhout. The Court of Appeal also

used the letter of 5 November 1987 written by Mr C.S. in reply to the

Inspector's letter of 4 September 1987 in evidence, although it stated

it had only used its contents as supporting evidence together with the

other means of evidence.

The applicant filed an appeal in cassation with the Supreme Court

(Hoge Raad). On 22 November 1994, the Supreme Court rejected the

applicant's appeal in cassation.

Insofar as the applicant had complained that the principle of

nemo tenetur had been violated in that the applicant had been subjected

to a written hearing considering him as a suspect, whereas he had not

been informed that he was not obliged to answer, the Supreme Court

accepted the opinion of the Court of Appeal that it had not been made

plausible that at the relevant time there was already a reasonable

suspicion of the applicant having committed a criminal offence, let

alone that there was already at that stage a "criminal charge" within

the meaning of Article 6 para. 1 of the Convention.

B. Relevant domestic law and practice

Article 5 of the General State Taxes Act provides that the Tax

Inspector determines the imposition of taxes.

Article 47 para. 1 of the General State Taxes Act provides:

(translation)

"Everyone is obliged, upon request, to provide the (tax)

inspector with:

a. data and information which could be of relevance for the

imposition of taxes on him ;

b. accounts, documents and other items containing data

(gegevensdragers) or the contents thereof - such according

to the inspector's choice - solely for the purpose of

consultation which could be of importance for the

determination of the facts which could influence the

imposition of taxes on him."

Article 68 of the General State Taxes Act, insofar as relevant,

reads:

(translation)

1. The person who:

a. ...

b. is obliged for fiscal purposes to provide information, data

or indications and who does not, or who does incorrectly or

insufficiently, provide information, data or indications;

...

if the consequence could be that taxes could be evaded, shall be

punished with imprisonment of maximum six months or a fine of the

third category.

2. The person who intentionally commits one of the facts

described in the first paragraph shall be punished with

imprisonment of maximum four years or a fine of the fourth

category or, if this is higher, a maximum corresponding to the

amount of tax evaded."

Pursuant to Article 80 of the General State Taxes Act, civil

servants of the State Taxes Departments may investigate criminal

offences under the fiscal legislation.

Under Article 76 of the General State Taxes Act, the fiscal

authorities may decide not to seek prosecution of fiscal criminal

offences when certain conditions, to be fixed by them, are met such as,

inter alia, payment of the amount of taxes evaded, payment of a

prescribed fine or retroactive compliance with an obligation under

fiscal legislation.

Pursuant to Article 80 of the General State Taxes Act the fiscal

authorities, insofar as they have not availed themselves of the

possibility to set conditions referred to in Article 76 of the General

State Taxes Act, must transmit their reports on fiscal criminal

investigations to the competent public prosecutor. Pursuant to

Article 167 of the Code of Criminal Procedure it is the task of the

public prosecutor to decide whether or not to start criminal

proceedings.

According to Article 80 para. 3 of the General State Taxes Act,

it is however also open for the public prosecutor to return the case

to the fiscal authorities for a resolution of the case by setting

conditions within the meaning of Article 76 of the General State Taxes

Act in order to avoid criminal proceedings.

Article 29 of the Code of Criminal Procedure reads:

(translation)

"1. In all cases where a person is heard as a suspect, the

questioning judge or civil servant shall refrain from everything

which could have the effect of obtaining a statement of which it

could be said it was not freely made. The suspect is not obliged

to answer.

2. Before the hearing the suspect is informed that he is not

obliged to answer.

3. The statements of the suspect, in particular those of a

confessing nature, shall be recorded in the minutes of the

hearing, as far as possible, in his own words. The information

referred to in the second paragraph shall be recorded in the

minutes."

According to the case-law of the Supreme Court, the information

referred to in Article 29 para. 2 of the Code of Criminal Procedure,

the so-called "caution" (cautie), is only to be given as soon as there

is a "reasonable suspicion" that the person questioned has committed

a criminal offence (cf. Nederlandse Jurisprudentie 1982, nr. 258 and

Nederlandse Jurisprudentie 1990, nr. 258). Insofar as it concerns

questions put in writing, the Supreme Court considered there is no duty

to give the caution as there is no direct confrontation between the

interrogator and the interrogated person and the latter is not required

immediately to answer the questions put to him or her (Nederlandse

Jurisprudentie 1986, nr. 405). On the basis of this reasoning, the

Supreme Court considered that questions put in writing by the Inspector

of Direct Taxes do not constitute a hearing within the meaning of

Article 29 of the Code of Criminal Procedure (Nederlandse

Jurisprudentie 1986, nr. 406).

COMPLAINT

The applicant complains that, by way of the letter of

4 September 1987, he has been unjustly forced to disclose self-

incriminating information which is contrary to the principle of nemo

tenetur inherent in the notion of a fair hearing within the meaning

of Article 6 para. 1 of the Convention.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the principle of nemo tenetur has been violated in

that, in the letter of 4 September 1987 from the tax authorities, he

was not informed, pursuant to Article 29 para. 2 of the Netherlands

Code of Criminal Procedure, that he was not obliged to answer the

questions contained in that letter.

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 fair ... hearing ... by an independent

and impartial tribunal...."

The Commission recalls at the outset that, as a general rule,

questions concerning evidence are to be answered by the national

courts. Article 6 (Art. 6) of the Convention does not lay down any

rules for the admissibility of evidence as such, which is therefore a

matter for regulation under domestic law (cf. Eur. Court H.R., Schenk

v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29,

para. 46).

The Commission recalls that, although not specifically mentioned

in Article 6 (Art. 6) of the Convention, the right to silence and the

right not to incriminate oneself, are generally recognised

international standards which lie at the heart of the notion of a fair

procedure under Article 6 (Art. 6). Their rationale lies, inter alia,

in the protection of the accused against improper compulsion by the

authorities thereby contributing to the avoidance of miscarriages of

justice and to the fulfilment of the aims of Article 6 (Art. 6) of the

Convention. The right not to incriminate oneself, in particular,

presupposes that the prosecution in a criminal case seeks to prove its

case against the accused without resort to evidence obtained through

methods of coercion or oppression in defiance of the will of the

accused (Eur. Court H.R., Saunders v. United Kingdom judgment of 17

December 1996, to be published in Reports 1996, para. 68).

The Commission further recalls that the right not to incriminate

oneself is primarily concerned with respecting the will of an accused

person to remain silent. As commonly understood in the legal systems

of the Contracting Parties to the Convention and elsewhere, it does not

extend to the use in criminal proceedings of material which may be

obtained from the accused through the use of compulsory powers but

which has an existence independent of the will of the suspect such as

documents acquired pursuant to a warrant (Saunders v. United Kingdom

judgment, loc. cit., para. 69).

In the present case the Commission is only called upon to

determine whether the use made by the prosecution and the trial courts

of a statement obtained from the applicant by the Tax Inspector

amounted to an unjustifiable infringement of the right not to

incriminate oneself. This question must be examined in the light of

all the circumstances of the case. In particular, it must be determined

whether the applicant has been subject to compulsion to give evidence

and whether the use made of the resulting evidence at his trial

offended the basic principles of a fair procedure inherent in Article 6

para. 1 (Art. 6-1) of the Convention of which the right not to

incriminate oneself is a constituent element.

It appears from Article 47 in conjunction with Article 68 of the

General State Taxes Act that the applicant was subject to a legal

obligation to provide information to the Tax Inspector. According to

Article 68 of the General State Taxes Act, a refusal by the applicant

to answer the questions put to him could have led to the imposition of

a fine or committal to prison.

As regards the question whether on 4 September 1987, the

applicant was already "charged with a criminal offence" within the

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

the Commission recalls that a "charge" for the purposes of Article 6

(Art. 6) of the Convention may in general be defined as "the official

notification given to the individual by the competent authority of an

allegation that he has committed a criminal offence". It may in some

instances take the form of other measures which carry the implication

of such an allegation and which likewise substantially affect the

situation of the suspect (cf. Eur. Court H.R., Eckle v. Germany

judgment of 15 July 1982, Series A no. 51, p. 33, para. 73; Foti and

Others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18,

para. 52 and No. 15921/89, Dec. 1.7.91, D.R. 71 p. 236).

The manner in which Article 6 (Art. 6) of the Convention is to

be applied during the preliminary investigation depends on the special

features of the proceedings involved and on the circumstances of the

case. In order to determine whether the aim of Article 6 (Art. 6) - a

fair trial - has been achieved, regard must be had to the entirety of

the domestic proceedings conducted in the case (cf. Eur. Court H.R.,

Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no.

275, p. 13, para. 38).

The Commission notes that the functions performed by the Tax

Inspector under Article 47 of the General State Taxes Act in the

present case were essentially investigative in nature. The purpose of

the Inspector's investigation was to ascertain and record facts for

fiscal purposes and not for a legal determination as to the applicant's

criminal liability, albeit that the results of a fiscal investigation

could be used as the basis for action by the prosecution authorities

in case these facts would disclose a possibility that criminal offences

under the tax laws had been committed.

The Commission further notes that the answers given by Mr C.S.

on behalf of the applicant merely confirmed information already

previously submitted voluntarily on the applicant's behalf to the tax

authorities in connection with his requests for an exoneration of wage

tax.

In these circumstances, the Commission cannot find that the

applicant's situation was substantially affected for the purposes of

Article 6 (Art. 6) of the Convention. The Commission further finds that

a requirement that an investigation by a Tax Inspector under Article

47 of the General State Taxes Act should be subject to the guarantees

of a judicial procedure as set forth in Article 6 para. 1 (Art. 6-1)

of the Convention would in practice unduly hamper the effective

functioning in the public interest of the activities of fiscal

authorities (cf., mutatis mutandis, Eur. Court H.R., Fayed v. United

Kingdom judgment of 21 September 1994, Series A no. 294-B, p. 48, para.

62 and Saunders v. United Kingdom, loc. cit., para. 67). The Commission

is, therefore, of the opinion that the investigation by the Tax

Inspector of the applicant's case was not such as to attract the

application of Article 6 (Art. 6) of the Convention and, consequently,

that the applicant's obligation to answer the Tax Inspector's questions

did not constitute an infringement of the right to silence and the

right not to incriminate oneself.

This applicant's situation for the purposes of Article 6

(Art. 6) of the Convention did, however, alter on 21 February 1989,

when his family home in the Netherlands was searched in the context of

a preliminary judicial investigation against him. The Commission

considers that this event substantially affected the applicant's

situation and, therefore, as from that date entitled him to the

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

as regards the rights of the defence. In this respect the Commission,

moreover, notes that the applicant, when he complained before the Court

of Appeal of the length of the proceedings, did in fact submit that the

criminal proceedings against him had started on 21 February 1989.

Finally, noting that it has not been alleged nor appeared that,

as from the start of the criminal proceedings against him on

21 February 1989, the applicant has been restricted in the exercise of

his rights under Article 6 (Art. 6) of the Convention, the Commission

finds no indication that the proceedings at issue fell short of the

requirements of Article 6 (Art. 6) of the Convention.

It follows that the application must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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ABAS v. THE NETHERLANDS

ABAS v. THE NETHERLANDS

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