Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27083/95

by E.G.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 April 1996, 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

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 20 March 1995 by

E.G. against the Netherlands and registered on 24 April 1995 under file

No. 27083/95;

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 1944, and resides in

The Hague. He is a chartered accountant by profession. Before the

Commission he is represented by P.J. Baauw, a lawyer practising in

Utrecht.

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

summarised as follows.

a. Criminal proceedings

In September 1979 the applicant declared his earnings to the

fiscal authorities for the purposes of income tax. As suspicions had

arisen that his declaration was incomplete, the fiscal authorities

inspected his accounts in December 1979.

On 22 January 1981 the fiscal authorities questioned the

applicant for the first time as a suspect of a fiscal offence. By

letter of 11 July 1983 the fiscal authorities informed the public

prosecutor of the applicant's case.

On 30 August 1984 the applicant was summoned to appear before the

Regional Court (Arrondissementsrechtbank) of The Hague on

27 September 1984 on charges of tax evasion.

Following a hearing held on 9 October 1984, the Regional Court,

in its judgment of 23 November 1984, convicted the applicant and

sentenced him to three months' imprisonment, suspended pending a

probation period, and imposed a fine of 20.000 Dutch guilders. Both the

applicant and the public prosecutor filed an appeal with the Court of

Appeal (Gerechtshof) of The Hague.

By judgment of 24 March 1986 the Court of Appeal quashed the

judgment of 23 November 1984 and declared the initial summons of

30 August 1984 void. It found the facts with which the applicant had

been charged insufficiently described in the summons. The public

prosecutor filed an appeal in cassation with the Supreme Court (Hoge

Raad).

On 26 January 1988 the Supreme Court quashed the judgment of

24 March 1986, finding that the initial summons was in conformity with

the requirements of Section 261 of the Code of Criminal Procedure

(Wetboek van Strafvordering) and referred the case back to the Court

of Appeal of The Hague for a new decision with due regard to the

Supreme Court's findings.

In its judgment of 19 September 1988 the Court of Appeal of The

Hague quashed the Regional Court's judgment of 23 November 1984,

convicted the applicant of tax evasion and imposed a fine of 200.000

Dutch guilders. The applicant filed an appeal in cassation with the

Supreme Court.

By judgment of 31 October 1989 the Supreme Court quashed the

judgment of 19 September 1988 in respect of the sentence imposed by the

Court of Appeal. The Supreme Court rejected the applicant's other

complaints. It referred the case to the Court of Appeal of Amsterdam.

On 31 May 1991 the Court of Appeal of Amsterdam sentenced the

applicant to payment of a fine of 25.000 Dutch guilders.

b. Disciplinary proceedings

On 12 November 1984 the applicant informed the President of the

Netherlands Institute of Chartered Accountants (Nederlands Instituut

van Registeraccountants, hereinafter referred to as "NIVRA") of the

criminal proceedings against him and requested a meeting.

By letter of 16 November 1984 the applicant was informed that the

NIVRA President preferred to await the judgment of the Regional Court

before meeting the applicant. He was requested to send a copy of the

judgment in due time. The applicant sent a copy of the judgment of 23

November 1984 by letter of 4 December 1984.

On 6 December 1984 a meeting took place between the applicant,

the applicant's lawyer, the NIVRA President and a member of the NIVRA

Bureau. In the course of that meeting the NIVRA President expressed the

opinion that the applicant's conduct was unbecoming for a chartered

accountant and merited a disciplinary complaint, but that no

disciplinary complaint would be lodged pending the final outcome of the

criminal proceedings against the applicant.

Between 10 and 14 December 1984 the applicant's lawyer and the

member of the NIVRA Bureau exchanged correspondence concerning

disciplinary proceedings in similar cases. Between 14 December 1984 and

27 June 1990 no contacts took place between the applicant and NIVRA.

By letter of 27 June 1990 the NIVRA Board filed a disciplinary

complaint with the NIVRA Disciplinary Council (Raad van Tucht). The

Board informed the Disciplinary Council that the applicant had been

convicted by judgment of 19 September 1988 and that this judgment had

only been quashed by the Supreme Court as regards the sentence, thereby

finally determining that the applicant had committed a fiscal offence.

A copy of this letter was communicated to the applicant. By

letter of 9 July 1990 the applicant's lawyer objected to such

proceedings given the time that had elapsed since the facts had

occurred. He referred in this respect to Article 6 of the Convention

and Section 44 of the Chartered Accountants Act (Wet op de

Registeraccountants). On 19 December 1990 the NIVRA Board filed a

written reaction to this objection, to which the applicant's lawyer

replied by letter of 8 January 1991.

On 15 January 1991 a hearing was held before the Disciplinary

Council. In its interlocutory decision of 7 January 1992, the

Disciplinary Council held that Article 6 para. 1 of the Convention was

applicable and that exceeding a "reasonable time" within the meaning

of this provision does not exclude further proceedings since a

determination that this requirement has not been respected could also

lead to the imposition of a lighter disciplinary measure or to no such

measure being imposed at all. The Council held that the disciplinary

proceedings started on 31 October 1989, when the Supreme Court rendered

its judgment in the applicant's case. Noting that the applicant had not

kept NIVRA informed of the state of the criminal proceedings against

him, the Disciplinary Council did not find the delay between

31 October 1989 and 27 June 1990 unreasonably long. It therefore

rejected the applicant's objection.

On 27 February 1992 the applicant filed an appeal against the

decision of 7 January 1992 with the NIVRA Appeal Council (Raad van

Beroep). On 27 July 1992 the Appeal Council declared the appeal

inadmissible, as the appealed decision was not a decision on the merits

of a disciplinary complaint.

On 26 January 1993 a second hearing was held before the

Disciplinary Council. In its decision of 15 June 1993 the Disciplinary

Council noted the applicant's conviction of fiscal offences, found the

complaint by the NIVRA Board well-founded, found the applicant's

conduct unbecoming for a chartered accountant and, noting that a

disciplinary measure had already been previously imposed on the

applicant, ordered the applicant's name to be struck off the

Accountants' Register.

The applicant filed an appeal with the NIVRA Appeal Council on

16 August 1993. A hearing was held before the Appeal Council on

17 March 1994.

In its decision of 21 September 1994 the Appeal Council upheld

the decision of 7 January 1992, quashed the decision of 15 June 1993

insofar as it concerned the order to strike the applicant's name off

the Accountants' Register, ordered the applicant's suspension for a

period of three months, upheld the decision of 15 June 1993 for the

remainder and ordered the publication of its decision.

Insofar as the applicant raised complaints relating to the

reasonable time requirement under Article 6 para. 1 of the Convention,

the Appeal Council held that the disciplinary proceedings had started

on 23 December 1989, when the Supreme Court's judgment of

31 October 1989 in the applicant's case was published and thus brought

to the attention of the NIVRA Board. This finding was not altered by

the fact that, apart from the criminal conviction, the NIVRA Board had

also criticised the applicant for his actual conduct, i.e. providing

the fiscal authorities with an incomplete declaration. The Appeal

Council did not accept the applicant's argument that the proceedings

should be considered as having started on 6 December 1984 given that

the applicant had been clearly informed that a disciplinary complaint

would only be filed in case of a criminal conviction.

COMPLAINTS

The applicant complains that both the criminal and the

disciplinary proceedings exceeded a reasonable time within the meaning

of Article 6 para. 1 of the Convention.

THE LAW

1. The applicant complains that both the criminal and the

disciplinary proceedings exceeded a reasonable time within the meaning

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

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

relevant, reads:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a ...

hearing within a reasonable time by a ... tribunal ..."

2. The Commission notes that in the present case the criminal and

disciplinary consequences of the applicant's acts were strictly

distinguished. In fact, the disciplinary organs did not themselves

"convict" the applicant of the fiscal offences concerned, but they

based themselves on the findings established by the criminal courts.

The disciplinary organs' task was in essence limited to an examination

of the question whether in the case of the applicant being a chartered

accountant the commission of fiscal offences of which he had been found

guilty also constituted a disciplinary offence.

In these circumstances the Commission finds that these two sets

of proceedings must be examined separately.

Insofar as the applicant complains of the duration of the

criminal proceedings against him, the Commission finds that the final

decision in these proceedings was the decision on sentence of

31 May 1991 by the Court of Appeal of Amsterdam. This is more than six

months before the date on which the application was submitted to the

Commission.

It follows that the applicant has not satisfied the conditions

laid down in Article 26 (Art. 26) of the Convention and that this part

of the application must be rejected in accordance with Article 27 para.

3 (Art. 27-3) of the Convention.

3. As regards the applicant's complaint of the length of the

disciplinary proceedings against him, the Commission considers that

notice of this complaint should be given to the respondent Government

in accordance with Rule 48 para. 2 (b) of its Rules of Procedure and

that they should be invited to submit their observations in writing on

the admissibility and merits of this part of the application.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaint

concerning the length of the disciplinary proceedings against

him;

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

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

Menu

E.G. v. THE NETHERLANDS

E.G. v. THE NETHERLANDS

LEXI