Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21961/93

by W.H.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 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 26 May 1993 by

W.H. against the Netherlands and registered on 2 June 1993 under file

No. 21961/93;

Having regard to:

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

the Commission;

- the observations submitted by the respondent Government on

11 November 1994 and the observations in reply submitted by the

applicant on 20 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

Belgium. He is represented before the Commission by Mr P.J. Baauw, a

lawyer practising in Utrecht.

The facts, as submitted by the applicant, may be summarised as

follows.

In the late 1970's and early 1980's, the applicant was the

director of, inter alia, the cleaning agencies S. and S.N., both

companies with limited liability. In September 1980, the Dutch tax

authorities inspected the accounts of another cleaning company, W.N.

This inspection showed that the latter company was a subcontractor of

the S. and S.N. companies. Between 1981 and 1984 the tax authorities

inspected the accounts of the S. and S.N. companies and all their

subcontractors.

On 31 December 1981, the tax inspector issued the first of a

number of supplementary tax assessments to the companies of which the

applicant was the director. In accordance with Dutch tax laws, these

assessments were increased by 100% which implied that fiscal offences

had been committed. It appears that the applicant started fiscal

proceedings challenging the supplementary tax assessments, but no

further information on these proceedings has been submitted.

On 28 June 1982, the Fiscal Intelligence and Investigation

Department (Fiscale Inlichtingen en Opsporingsdienst, hereinafter

referred to as "FIOD") allegedly informed the applicant's lawyer that

they suspected the applicant of fraud committed between 1979 and 1982.

In May 1984, the Audit Division of the Department of Direct Taxes

at The Hague handed the investigation against, inter alia, the

companies of which the applicant was the director over to the FIOD. On

14 June 1984, the FIOD interrogated the applicant as a suspect. In the

same month the FIOD seized his accounts for investigation purposes.

Between 27 February 1985 and 10 June 1986 the FIOD questioned about 70

persons in connection with the investigation against the applicant.

On 8 May 1985, the applicant was arrested on suspicion of fraud

and detained on remand. On 17 June 1985, he was conditionally released.

The conditions for his release, inter alia, a bank guarantee of 200.000

Dutch guilders, were lifted on 11 December 1985.

On 10 May 1985, a judicial investigation (gerechtelijk

vooronderzoek) against the applicant was opened, during which the

investigating judge heard the applicant on four occasions. The

investigating judge further examined 25 witnesses and 3 experts, most

of them at the applicant's request.

The judicial investigation was closed in January 1989 and the

applicant was subsequently summoned to appear before the Regional Court

(Arrondissementsrechtbank) of The Hague on 13 April 1989 on five counts

of fraud, and for participation in a criminal organisation.

The applicant's objection (bezwaar) against the summons was

rejected after a hearing, and on 18 May 1989, the Regional Court

started its examination of the substance of the charges. Another

hearing was held on 27 July 1989. On 10 August 1989, the Regional Court

acquitted the applicant of participation in a criminal organisation,

convicted him of five counts of fraud and sentenced him to twenty-four

months' imprisonment, six months of which suspended during a probation

period of two years, and a fine of 500.000 Dutch guilders. The time the

applicant had spent in pre-trial detention was to be deducted from his

prison sentence.

Both the applicant and the public prosecutor filed an appeal

against this judgment with the Court of Appeal (Gerechtshof) of The

Hague.

On 11 July 1991, the Court of Appeal quashed the Regional Court's

judgment, convicted the applicant of three counts of fraud, acquitted

him of two counts of fraud and, in accordance with Section 63 of the

Criminal Code (Wetboek van Strafrecht) after having noted a previous

conviction, sentenced him to six months' imprisonment, three months of

which were suspended during a probation period of two years, and a fine

of 25.000 Dutch guilders.

As to the argument that the prosecution should be declared

inadmissible because the criminal charges had not been determined

within a reasonable time, the Court of Appeal found that the criminal

proceedings had started on 14 June 1984, when the applicant had been

questioned for the first time. It further held that:

[Dutch]

"Het ging om de administratie van een aantal nauw met elkaar

verweven b.v.'s die deze verwevenheid voor de buitenwereld

trachtten te verhullen. Bij de aanvang van het onderzoek tegen

verdachte was dit nog allerminst duidelijk en was daarmee ook

niet duidelijk dat er gebruik gemaakt was van valse fakturen

(...). Gezien de ingewikkeldheid van het onderzoek is de

redelijke termijn in de zin van artikel 6 EVRM in de onderhavige

strafzaak in deze fase dan ook niet overschreden. (...) De

verdediging wijt de lange duur van het gerechtelijk vooronderzoek

mede aan de berispelijke kwaliteit van het onderzoek van de

fiscale recherche en aan de beperkte tijd die de rechter-

commissaris beschikbaar had. Wat daarvan zij, de lange duur is

in de eerste plaats veroorzaakt door de wens van de verdediging

om vele reeds eerder gehoorde getuigen zeer uitgebreid opnieuw

te doen horen. Ook al valt wellicht aan het FIOD onderzoek het

een en ander af te dingen, het is zeker niet uitsluitend of in

overwegende mate aan de justitiële autoriteiten te wijten dat met

deze ingewikkelde zaak veel tijd gemoeid is geweest.

Ook bij de behandeling van de onderhavige strafzaak in hoger

beroep is een redelijke termijn niet overschreden, in aanmerking

genomen enerzijds de duur van de bedoelde periode, anderzijds de

ernst van de onderhavige feiten. Al het vorenoverwogene in

aanmerking genomen is evenmin sprake van overschrijding van een

redelijke termijn wat betreft de totale duur van de behandeling

van deze strafzaak tot op heden. Het hof verwijst hier naar

hetgeen hierboven gezegd is omtrent de ingewikkeldheid van de

zaak."

[Translation]

"It concerns the administration of a number of closely

intertwined companies with limited liability which attempted to

conceal their close links from the outside world. At the outset

of the investigation against the suspect this was still far from

clear and it was also not clear that use had been made of fake

invoices (...). In view of the complexity of the investigation,

the reasonable time within the meaning of Article 6 of the

European Convention of Human Rights has not been exceeded at that

stage of the present criminal case. (...) The defence attributes

the long duration of the judicial investigation also to the

inferior quality of the investigation by the Fiscal Information

and Investigation Department and the limited time at the disposal

of the investigating judge. Be that as it may, the long duration

is primarily caused by the defence's wish to have many witnesses,

who had already been interrogated, examined again very

extensively. Even though the investigation by the FIOD may not

have been flawless, the judicial authorities are certainly not

exclusively or mainly to blame for the fact that this complex

case has taken much time.

Also in the appeal proceedings in the present criminal case the

reasonable time has not been exceeded, considering, on the one

hand, the duration of this period, and, on the other hand, the

serious facts at issue. Taking all the aforementioned into

account, the total length of the proceedings up to this present

day in this criminal case has not exceeded a reasonable time

either. The court refers to its remarks above as regards the

complexity of the case."

As regards the sentence to be imposed, the Court of Appeal held,

inter alia,:

[Dutch]

"Het Hof acht enerzijds gelet op de ernst van de bewezen-

verklaarde feiten een onvoorwaardelijke gevangenisstraf alleszins

gerechtvaardigd. Verdachte heeft de feitelijke leiding gehad van

S. en S.N. Verdachte heeft zich daarbij schuldig gemaakt

gedurende een ruime periode en op grote schaal aan ontduiking van

verschuldigde sociale premies en vennootschapsbelasting, teneinde

de kas van die B.V.'s te spekken c.q. de mensen die in die B.V.'s

de dienst uitmaken te bevoordelen, een en ander ten nadele van

derden.

Anderzijds houdt het Hof rekening met het tijdsverloop dat is

verstreken sinds de telastegelegde feiten. Het Hof zal derhalve

thans overgaan tot het opleggen van een gevangenisstraf van na

te melden duur waarvan de helft voorwaardelijk en zulks

gecombineerd met een geldboete."

[Translation]

"On the one hand, the Court is of the opinion that an

unconditional prison sentence is in every respect justified,

taking into account the seriousness of the proven facts. The

suspect was in reality the director of S. and S.N. In that

capacity the suspect is guilty, for an extended period of time

and on a large scale, of evasion in paying due social security

contributions and due corporation taxes, in order to increase the

assets of these companies and/or benefit the people who were in

charge of these companies, all to the detriment of third parties.

On the other hand, the Court takes into account the time that has

elapsed since the commission of the crimes the suspect was

charged with. The Court will therefore now proceed to impose a

prison sentence of a duration to be stated below of which half

will be conditional and this in combination with a fine."

The applicant's subsequent appeal in cassation was rejected by

the Supreme Court (Hoge Raad) on 1 December 1992. Insofar as the

applicant repeated his complaint that the criminal charges against him

had not been determined within a reasonable time, the more so as the

proceedings against him should be considered to have started on 31

December 1981, the Supreme Court accepted the reasoning of the Court

of Appeal.

Pursuant to the relevant rules contained in the General State

Taxes Act (Algemene Wet inzake Rijksbelastingen), the 100 % increase

of the additional tax assessments ceased to apply as the facts on which

this increase was based had led to a separate irrevocable substantive

judgment.

COMPLAINT

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

that the criminal charges against him were not determined within a

reasonable time. He submits that the criminal proceedings against him

started on 31 December 1981, when he received the first supplementary

tax assessment, and ended on 1 December 1992, when the Supreme Court

rejected his appeal in cassation and that in virtually all stages of

the criminal proceedings there were excessively long periods of

inactivity imputable to the prosecution and judicial authorities.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 May 1993 and registered on

2 June 1993.

On 2 September 1994, the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

11 November 1994. The applicant replied on 20 February 1995, after an

extension of the time-limit fixed for that purpose.

THE LAW

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

Convention that the criminal charges against him have not been

determined within a reasonable time.

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 ..."

1. The Government submit in the first place that the applicant can

no longer claim to be a victim within the meaning of Article 25

(Art. 25) of the Convention as the Court of Appeal had taken the time

involved in the proceedings into account in the determination of the

applicant's sentence. In this respect the Government also emphasises

that, as a result of the applicant's conviction, the fiscal penalties

imposed, i.e. the 100% increase of the additional tax assessments, had

ceased to apply.

The applicant refutes this argument, as the Court of Appeal has

explicitly rejected his argument that the proceedings had exceeded a

reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention. As regards the determination of the sentence, the Court

of Appeal has only had regard to the time elapsed since the commission

of the offences. The applicant argues that this does not concern the

question whether the criminal proceedings have taken place within a

reasonable time and that no redress has been obtained for an

acknowledged violation of the Convention.

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 the national

authorities have acknowledged either expressly or in substance the

breach of that provision and if redress has been given (cf. No.

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

However, in the present case the domestic courts have 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. Consequently, there is no acknowledgement, either

expressly or in substance, of a violation of the Convention.

In these circumstances it is unnecessary to examine whether the

the sentence imposed by the Court of Appeal may be considered as

constituting redress (cf. No. 10868/84, Dec. 21.1.87, D.R. 51, p. 62).

The applicant can therefore 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 submit that the criminal proceedings at issue started on

14 June 1984, when the FIOD examined the applicant as a suspect. Before

that date it was by no means obvious that steps would be taken against

the applicant under criminal law.

The Government submit that it was only the preliminary judicial

investigation which took longer than desirable. However, given the very

large and complex criminal investigation in which the FIOD heard more

than 70 persons, and the investigating judge heard 25 witnesses and 3

experts most of them at the request of the defence, the Government are

of the opinion that it cannot be said that this investigation was not

completed within a reasonable time. The Government finally submit that

the proceedings before the Dutch courts did not last excessively long.

In view of these elements and further taking into account that

the applicant only spent one month in pre-trial detention, the

Government are of the opinion that the proceedings did not exceed a

reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention.

The applicant submits that the proceedings against him started

on 31 December 1981, when he received the first additional tax

assessment increased by 100%. He further submits that he had asked for

the examination of witnesses before the investigating judge, although

these witnesses had already been examined by the FIOD, as his lawyer

was not allowed to be present when the FIOD questioned these persons

in the course of the FIOD investigation.

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 Second Chamber President of the Second Chamber

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

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W.H. v. THE NETHERLANDS

W.H. v. THE NETHERLANDS

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