Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23229/94

by H. H.

against the Netherlands

The European Commission of Human Rights sitting in private on

13 May 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 November 1993

by H. H. against the Netherlands and registered on 10 January 1994

under file No. 23229/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 27 February 1995 to declare the

application partly inadmissible and to communicate it as regards

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

Convention that the criminal charges against him were not

determined within a reasonable time;

- the observations submitted by the respondent Government on

28 April 1995 and the observations in reply submitted by the

applicant on 5 July 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1945, residing in

Blaricum, the Netherlands. Before the Commission he was initially

represented by Mr. J.B. Boone, a lawyer practising in Wijk bij

Duurstede, the Netherlands, who was succeeded by Mr. J. Italianer, a

lawyer practising in Amsterdam.

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

summarised as follows.

On 5 December 1983, the applicant was arrested and subsequently

detained on remand on suspicion of tax fraud and forgery. He was

released on 9 December 1983.

Also on 5 December 1983, Mr. A., a lawyer and the applicant's

financial adviser, was arrested on suspicion of having been an

accessory or accomplice to forgery, or having procured the commission

of forgery, and on suspicion of having been an accessory to tax fraud.

On the same day, Mr. A.'s office was searched and documents that later

proved to incriminate the applicant were confiscated.

In addition to the applicant and Mr. A., there were six other

suspects, one of whom was a company with limited liability.

On 9 December 1983, the investigating judge (rechter-commissaris)

of the Regional Court (Arrondissementsrechtbank) of Amsterdam, at the

request of the public prosecutor (officier van justitie), opened a

preliminary judicial investigation (gerechtelijk vooronderzoek) to

investigate the suspicions against the applicant.

On 21 March 1984, the investigating authorities sent a request

for international legal assistance (rechtshulpverzoek) to the competent

British authorities, requesting, inter alia, the examination of

witnesses and information about a number of companies. On 13 March

1985, the British authorities informed the Dutch authorities that they

had been unable to carry out the request.

On 10 July 1984, a request for international legal assistance was

sent to the competent authorities in Luxembourg in regard to the

examination of witnesses and information about certain bank accounts.

On 29 April 1985, the request was refused by the Luxembourg

authorities.

On 11 December 1984, the applicant filed a request under Section

180 of the Code of Criminal Procedure (Wetboek van Strafvordering) with

the Regional Court of Amsterdam, asking the Court to order the

acceleration of the investigation.

On 24 April 1985, the preliminary judicial investigation was

closed. The applicant was notified of the closure on 17 May 1985.

On 19 June 1985, the applicant was summoned to appear before the

Regional Court of Amsterdam on 5 September 1985 on five charges of tax

fraud and forgery. The offences the applicant was charged with had

allegedly been committed between February 1977 and September 1983.

On 20 June 1985, the applicant lodged an objection

(bezwaarschrift) against the indictment with the Regional Court of

Amsterdam. As a consequence of this, the commencement of the

examination of the case itself had to be postponed until a final

decision on the objection had been taken.

The Regional Court examined the objection at a hearing on 17

September 1985. It rejected the objection on 21 October 1985.

The applicant filed an appeal against the decision of 21 October

1985 with the Court of Appeal (Gerechtshof) of Amsterdam. On 18 April

1986, the Court of Appeal quashed the Regional Court's decision,

finding that documents had been added to the applicant's case-file

after the preliminary judicial investigation had been closed. The Court

of Appeal referred the case to the investigating judge at the Regional

Court of Amsterdam, and ordered that witnesses be heard and that the

Regional Court of Amsterdam take a new decision on the applicant's

objection against the indictment lodged on 20 June 1985 after the

examination of the witnesses.

In December 1986, the public prosecutor decided not to pursue the

charges (sepot) against Mr. A. and the other six suspects in view of

the perceived impossibility of concluding the criminal proceedings

against these suspects within a reasonable time within the meaning of

Article 6 of the Convention. Their cases were further dealt with by the

tax authorities. The charges against the applicant, however, were not

relinquished.

In January 1987, the investigating judge summoned the witnesses

whose examination had been requested by the applicant. The applicant

and his lawyer were invited to attend the hearings but did not appear,

nor did they send the investigating judge questions in writing to be

put to the witnesses. On 7 December 1989, the applicant stated before

the Regional Court of Amsterdam that he and his lawyer had not attended

the hearings because they had assumed that the charges brought against

the applicant would be relinquished as well.

On 23 April 1987, the Regional Court of Amsterdam was due to re-

examine the objection against the indictment which had been lodged by

the applicant on 20 June 1985. At the applicant's request the hearing

was adjourned.

On 11 November 1987, the applicant's objection against the

indictment was once again due to be re-examined by the Regional Court.

This hearing was adjourned at the request of the public prosecutor.

On 8 January 1988, the Regional Court re-examined the applicant's

objection against the indictment. On 19 January 1988, it rejected the

objection.

The applicant's appeal against the decision of 19 January 1988

was rejected by the Court of Appeal on 29 June 1988 following a hearing

on 22 April 1988. The applicant's subsequent appeal in cassation

against the decision of the Court of Appeal was rejected on 6 June 1989

by the Supreme Court (Hoge Raad).

After the Supreme Court had given its decision on the objection

against the indictment lodged by the applicant on 20 June 1985, the

criminal case itself could be dealt with by the Regional Court of

Amsterdam.

The applicant was summoned to appear before the Regional Court

of Amsterdam on 26 October 1989. The Court commenced its examination

of the case but, at the request of the applicant, whose lawyer had to

leave the Court session on account of obligations elsewhere, and the

public prosecutor, who wished to summon witnesses, namely Mr. A. and

a certain Mr. B., and to add documents to the case-file, the

examination was adjourned until 7 December 1989.

On 7 December 1989, the Regional Court resumed its examination

of the case. Mr. B. was examined by the Court as a witness. Mr. A. had

not appeared. The Regional Court subsequently ordered that Mr. A. be

brought before the Court by force (bevel medebrenging) on that same

day. However, Mr. A. could not be found. The applicant stated that he

did not think it necessary that the Court examine Mr. A. as a witness.

However, upon request of the public prosecutor, who insisted that Mr.

A. be examined by the Court, the Regional Court adjourned the

examination until 15 January 1990, ordering that Mr. A. be brought

before the Court by force.

On 15 January 1990, Mr. A. did not appear. The Regional Court

heard the statement of one of the police officers who had been ordered

to bring Mr. A. before the Court. The Court examined another witness.

The applicant stated that he did not wish to have Mr. A. examined as

a witness (afzien van het horen van de getuige). The Regional Court

rejected the public prosecutor's request for another adjournment, which

request was made in order to hear Mr. A. at a later date.

In his final address to the Court, the public prosecutor stated,

inter alia, that in his view the applicant had objected to the

indictment because he intended to delay the proceedings. He submitted

that the applicant and his lawyer had not attended the hearings before

the investigating judge and that the referral of the case by the Court

of Appeal to the investigating judge, in order to have the latter

examine witnesses at the request of the defence, had proved useless.

On 29 January 1990, the Regional Court acquitted the applicant

of two charges, convicted him of the remaining three, and sentenced him

to nine months' imprisonment, suspended pending a probation period of

two years, and a fine of 750,000 Dutch guilders to be replaced by six

months' imprisonment in case of non-payment. When it imposed its

sentence, the Court took into account inter alia that the long period

of time which had elapsed between the applicant's arrest and the

Court's decision could not solely be attributed to the applicant.

Both the applicant and the public prosecutor lodged an appeal

against the judgment with the Court of Appeal of Amsterdam.

The Court of Appeal started its examination of the case on 17

June 1991. The applicant was represented by another lawyer. The Court

of Appeal adjourned its examination of the case until 5 September 1991

as Mr. A., who had been summoned as a witness, had not appeared, and

as the applicant insisted that Mr. A. be heard. The Court of Appeal

ordered that Mr. A. be brought before it by force.

On 5 September 1991, the Court of Appeal resumed its examination

of the case. At the applicant's request it examined four witnesses. Mr.

A. had not appeared. Because the applicant insisted that Mr. A. be

heard, the Court, noting the central role Mr. A. had played in the

whole affair, adjourned its examination until 18 November 1991,

ordering that Mr. A. be brought before the Court by force. The Court

of Appeal stated that should Mr. A. not be present on 18 November 1991,

it would not further adjourn its proceedings.

On 18 November 1991, Mr. A. was, again, not present. In his

pleadings, the applicant requested the Court of Appeal to declare the

prosecution inadmissible because the criminal charges against him had

not been determined within a reasonable time.

On 2 December 1991, the Court of Appeal quashed the Regional

Court's judgment, acquitted the applicant of two charges and convicted

him of the remaining three (the same as those of which the Regional

Court had convicted the applicant).

The Court of Appeal found that some undesirably long periods of

delay had occurred at the stage of the examination of the objection

against the indictment. It held, however, that the criminal charges

against the applicant had been determined within a reasonable time. The

Court stated that it would take into account the duration of the

proceedings in the determination of the sentence.

When it imposed its sentence on the applicant, the Court of

Appeal held, inter alia:

"The accused repeatedly and on a large scale withheld

money from society.... In this way, the accused aggrieved

the community in a serious way. Apparently, the accused let

himself be guided by the objective of financial gain at the

expense of the community. Under these circumstances, the

imposition of a penalty which deprives [him of his]

freedom, in combination with a substantial fine, is in

every way justified. In view of the facts that in the

meantime a very long time has elapsed since the commission

of the offences at issue, that it has become plausible that

the accused has suffered psychological detriment because of

the legal proceedings in question and the accompanying

publicity, and that the accused has not previously been

convicted of a criminal offence, the Court finds it

appropriate to decide that the imprisonment to be imposed

shall be suspended."

The applicant was sentenced to nine months' imprisonment,

suspended pending a probation period of two years, and a fine of half

a million Dutch guilders to be replaced by six months' imprisonment in

case of non-payment.

On 10 December 1991, the applicant filed an appeal in cassation

with the Supreme Court. He complained, inter alia, of the length of the

criminal proceedings against him and argued that the prosecution should

have been declared inadmissible by the Court of Appeal for this reason.

The Supreme Court was scheduled to hear the case on 22 December

1992, but at the request of the applicant, the case was adjourned to

2 February 1993.

On 20 April 1993, the Advocate General (Advocaat-Generaal) at the

Supreme Court submitted his written conclusions. The Advocate General

stated, inter alia:

"This case concerns extensive tax fraud, for which the

Court of Appeal of Amsterdam, in addition to a fine of

500,000 Dutch guilders, would have imposed a non-suspended

prison sentence, if the trial had not taken an undesirably

long time. The Court now imposed, in addition to the fine,

a suspended prison sentence of nine months....

The Court rejected the reasonable time argument on

sufficient grounds.... The Court explained how a number of

delays came about. Moreover, it considered in particular

the period of time in which the objection against the

indictment was dealt with to have been undesirably long and

subsequently took the excessive length of the proceedings

into account in the determination of the penalty."

The Advocate General's written conclusions were sent to the

applicant's lawyer, who replied to them on 10 May 1993.

On 1 June 1993, the Supreme Court rejected the applicant's appeal

in cassation. It upheld the reasoning of the Court of Appeal. The

Supreme Court added:

"Even if the period of time between the lodging of the

appeal in cassation and its examination during a session of the

Supreme Court is taken into account, it cannot be said that the

trial of this case has not taken place within a reasonable time

within the meaning of ... Article 6 of the Convention ..."

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that the criminal charges against him, which were subject to

proceedings lasting for nine years and almost six months, were not

determined within a reasonable time. He submits that, apparently as a

result of the complexity of the case, the preliminary judicial

investigation lasted for one year and four and a half months (from 9

December 1983 to 24 April 1985). The applicant furthermore admits that

a delay of ten months was attributable to him (the period from 23 April

1987 to 8 January 1988, and the period from 22 December 1992 to 2

February 1993). A delay of seven and a half months was caused by the

non-appearance of witnesses (the period from 26 October 1989 to 15

January 1990, and the period from 17 June to 18 November 1991). The

remaining six years and eight months were attributable to the judicial

authorities. In this respect, the applicant refers in particular to the

following delays:

- nine months elapsed between the decision of the Amsterdam Court

of Appeal of 18 April 1986 that witnesses were to be heard and

the summoning of these witnesses by the investigating judge in

January 1987;

- almost twelve months elapsed between the decision of the

Amsterdam Court of Appeal of 29 June 1988 and the decision of the

Supreme Court of 6 June 1989;

- between the judgment of the Amsterdam Regional Court of 29

January 1990 and the first appeal hearing before the Amsterdam

Court of Appeal on 17 June 1991 a period of seventeen months

elapsed;

- a period of over seventeen months elapsed between the filing

of the appeal in cassation on 10 December 1991 and the judgment

of the Supreme Court on 1 June 1993.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 November 1993 and registered

on 10 January 1994.

The Commission decided on 27 February 1995 to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the applicant's complaint that

the criminal charges against the applicant were not determined within

a reasonable time. The Commission declared the remainder of the

applicant's complaints inadmissible.

The Government's written observations were submitted on 28 April

1995. The applicant replied on 5 July 1995, after an extension of the

time-limit fixed for that purpose.

THE LAW

The applicant complains of the length of the criminal proceedings

against him. He invokes Article 6 para. 1 (Art. 6-1) of the Convention,

which provides, insofar as relevant:

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

him, everyone is entitled to a ... hearing within a reasonable

time by a ... tribunal ..."

1. The respondent Government argue in the first place that the

applicant can no longer be regarded as a victim within the meaning of

Article 25 (Art. 25) of the Convention in view of the reduction of the

sentence imposed on the applicant by the Court of Appeal in connection

with the undesirably protracted length of the criminal proceedings. In

the opinion of the Government, this considerable reduction constituted

a substantial redress for any damage the applicant suffered as a result

of the length of the proceedings.

The applicant refutes this argument, arguing that it appears from

the judgment of the Court of Appeal that the length of the proceedings

only played a role in the reduction of the term of imprisonment and not

in the reduction of the monetary fine. He furthermore submits that the

Court of Appeal failed to explain the relative weight attached to each

of the three factors (the lapse of time, the psychological damage and

the lack of previous convictions) which led it to impose only a

suspended term of imprisonment. The applicant also points out that no

redress was given for the period of over seventeen months which elapsed

between the filing of the appeal in cassation and the date of the

Supreme Court's judgment.

The Commission recalls that an applicant can no longer claim to

be a victim of the failure to observe the "reasonable time" requirement

in Article 6 para. 1 (Art. 6-1) of the Convention if his sentence has

been reduced in an express and measurable manner after a judicial

finding concerning the undue length of the proceedings (cf. No.

17661/91, Dec. 31.3.93, D.R. 74 p. 156).

The Commission notes, however, that the Court of Appeal in the

present case expressly denied a violation of Article 6 para. 1

(Art. 6-1) of the Convention in respect of the applicant's complaint

of the length of the proceedings. The Supreme Court endorsed this view.

Consequently, there is no acknowledgement, either expressly or in

substance, of a violation of the Convention and in these circumstances

the Commission finds it unnecessary to examine whether the sentence

imposed by the Court of Appeal may be considered as constituting full

redress (cf. No. 21961/93, Dec. 28.2.96, unpublished).

Moreover, in respect of the time which had elapsed following the

lodging of the appeal in cassation the Supreme Court found that even

if this period of time was taken into account the proceedings had still

not exceeded a reasonable time.

Accordingly, the applicant can still claim to be a victim within

the meaning of Article 25 (Art. 25) of the Convention of a breach of

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

2. As regards the substance of the applicant's complaint, the

Government observe that the case involved a very large and complex

criminal investigation into tax fraud and forgery. This investigation

related, amongst other things, to income tax and company tax returns

for five separate years. Requests for assistance also had to be made

in the course of the investigation to the authorities of the United

Kingdom and Luxembourg. The investigation moreover focused on a number

of suspects and involved the questioning of numerous witnesses and

experts.

The Government further submit that the position adopted by the

defence significantly contributed to the length of the proceedings. To

begin with, the proceedings in the criminal case itself were

considerably delayed as a result of the objection lodged by the

applicant against the indictment. The Government also wish to stress

that the applicant slowed down the proceedings on a number of occasions

by requesting adjournments.

The applicant disputes that the case was as complex as argued by

the Government. In this respect he submits that the facts at issue

overlapped each other to a large extent. In his opinion, the Dutch

authorities must have been aware that no judicial assistance would be

forthcoming from the Luxembourg authorities as the case concerned

fiscal offences or ordinary offences with a fiscal background. This

prior knowledge of the Dutch authorities is borne out by the fact that

the preliminary judicial investigation had already been closed before

the decision of the Luxembourg authorities to refuse the request for

judicial assistance.

As regards the position adopted by the applicant or his counsel,

the applicant submits that an accused can never be reproached for

having made use of the legal remedies available to him, such as the

lodging of an objection against the indictment. Moreover, in his view

the delays which occurred at this stage of the proceedings were not the

result of the recourse to this remedy but rather of the unacceptably

long periods which elapsed between the various phases in the processing

thereof. Finally, the applicant submits that any requests for

adjournments made on his behalf are offset against numerous attempts

to expedite the proceedings which were made by his counsel during the

various hearings and in writing on 11 December 1984.

After an examination of the complaint in the light of the

parties' submissions, the Commission considers that it raises issues

of fact and law requiring an examination of the merits. The application

cannot, therefore, be declared manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for inadmissibility have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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H.H. v. THE NETHERLANDS

H.H. v. THE NETHERLANDS

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