Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21351/93

by J.J.

against the Netherlands

The European Commission of Human Rights sitting in private on

16 October 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

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 12 November 1992

by J.J. against the Netherlands and registered on 9 February 1993 under

file No. 21351/93;

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

28 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1942, and resides at

Weiteveen, the Netherlands. He is a professional tax consultant.

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

summarised as follows.

a. Particular circumstances of the case

On 14 December 1989, the tax inspector sent a supplementary

income tax assessment to the applicant. In accordance with Dutch rules

on taxation, a fiscal penalty was imposed, which raised the amount due

by 100%. The penalty amounted to 38.656 Dutch guilders.

On 20 December 1989, the applicant lodged an appeal against the

tax assessment with the Court of Appeal (Gerechtshof) of Leeuwarden.

By letter of 21 December 1989, the registrar of the Court of Appeal

requested the applicant to pay a court registration fee (griffierecht)

of 75 Dutch guilders pursuant to Section 5 of the Administrative

Decisions Appeals Act in Taxation Cases (Wet Administratieve

Rechtspraak Belastingzaken; hereafter referred to as "WARB").

On 23 March 1990, the appeal was declared inadmissible because

the applicant had failed to pay the court registration fee. The

applicant lodged an objection (verzet) against this decision with the

Court of Appeal of Leeuwarden. On 26 October 1990, the Court of Appeal

rejected the objection as ill-founded.

Thereupon, the applicant lodged an appeal in cassation with the

Supreme Court (Hoge Raad). He submitted that the non-payment of the

court registration fee was caused by an error on the part of his bank,

for which he could not be held responsible. The applicant further

submitted that in cases of this kind, which concern the determination

of a criminal charge, the levying of a court registration fee is

contrary to Article 6 para. 1 of the Convention.

In the proceedings before the Supreme Court, written submissions

in reply (vertoogschrift) were made by the Deputy Minister of Finance

(Staatssecretaris van Financiën) in reply to the applicant's appeal in

cassation. On 19 November 1991, the Procurator General (Procureur-

Generaal) to the Supreme Court submitted his written conclusions

(conclusie), advising to reject the appeal in cassation.

On 17 June 1992, the Supreme Court rejected the appeal. It ruled

that the levying of a court registration fee in criminal cases is, in

itself, not contrary to Article 6 para. 1 of the Convention. It further

ruled that the amount of the fee that must be paid pursuant to Section

5 of the WARB, in combination with the possibility of a reduction in

the fee, is not such that it constitutes a serious obstacle to the

access to court.

b. Relevant domestic law

Pursuant to Section 21 of the National Taxation Act (Algemene Wet

inzake Rijksbelastingen), a supplementary tax assessment may be

increased by a 100% surcharge if the fact that insufficient taxes have

been paid is due to the tax debtor's gross negligence or intent.

Pursuant to Section 23 of the National Taxation Act a tax debtor

can lodge an objection (bezwaarschrift) against an assessment of taxes

with the tax inspector. Against the inspector's decision on an

objection an appeal lies with the Court of Appeal.

However, it is also possible to appeal directly to the Court of

Appeal against a tax assessment without having first lodged an

objection to the inspector. Against the judgment of the Court of Appeal

an appeal in cassation lies with the Supreme Court.

Parties to tax proceedings are the tax authorities and the

natural or legal person whose taxes are assessed.

Pursuant to Section 5 para. 1 of the WARB, a court registration

fee of 75 Dutch guilders is levied for an appeal with the Court of

Appeal. In the case of an appeal in cassation, a fee of 300 Dutch

guilders is levied. However, the fee is reduced to 40 and 150 Dutch

guilders respectively, when the proceedings concern an amount of tax

not exceeding 150 Dutch guilders (Section 5 para. 3 WARB). For natural

persons with limited financial resources, the fee is reduced to 40 and

75 or 150 Dutch guilders respectively (Section 5 para. 4 WARB). Section

5 para. 7 WARB provides for the reimbursement of the fee if the appeal

against the assessment is found to be partially or wholly well-founded.

Pursuant to Section 5 para. 5 of the WARB the appeal will, as a

rule, be declared inadmissible if the court registration fee has not

been paid within eight weeks from the date on which the registrar of

the Court of Appeal or the Supreme Court has sent a letter requesting

payment of the fee.

While the obligation to pay a court registration fee in the case

of an appeal in cassation with the Supreme Court has existed for a long

time, the obligation to pay a fee in the case of an appeal with the

Court of Appeal was only introduced in 1983. The fee was introduced to

cover part of the expenses of the administration of justice, and to

stimulate tax debtors to make a well-considered decision regarding the

introduction of an appeal. The same reasons were given when the court

registration fees were raised in 1985.

Section 22 of the WARB provides that the registrar of the Supreme

Court shall send a copy of the opposing party's written submissions in

reply (vertoogschrift) to the party who has lodged the appeal in

cassation.

Although proceedings before the Supreme Court, which are limited

to points of law, are in principle in writing, Section 23 of the WARB

provides that a hearing shall be held by the Supreme Court upon the

request of a party to the tax proceedings. The party lodging the appeal

in cassation can make such a request either when lodging the appeal in

cassation or within fourteen days after having received the written

submissions in reply of the opposing party. The opposing party can

request such a hearing when making written submissions in reply.

After the hearing, or in the absence of a hearing after the

submissions of the parties to the proceedings, the Procurator General

will submit his written conclusions to the Supreme Court (Section 24

WARB). After the submission of these conclusions the Supreme Court will

deliberate in chambers (raadkamer). The Procurator General does not

participate in these deliberations.

If the Supreme Court decides to quash the judicial decision

complained of, it can either decide the case itself, or, in cases where

a decision on the merits depends on factual questions, refer the case

back to the Court of Appeal which took the quashed decision or to

another Court of Appeal (Section 25 WARB).

COMPLAINTS

1. The applicant complains that the levying of a court registration

fee in criminal cases infringes his right of access to court and is,

therefore, contrary to Article 6 para. 1 of the Convention. He argues

that there should be no fee at all in criminal cases.

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

that, in the proceedings before the Supreme Court, he was not able to

respond to the written submissions in reply of the Deputy Minister of

Finance and the written conclusions of the Procurator General at the

Supreme Court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 November 1992 and registered

on 9 February 1995.

On 7 December 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

28 February 1995, and, by letter of 15 March 1995, these observations

were communicated to the applicant, who was invited to submit his

comments in reply before 3 May 1995.

When the time-limit for the submission of the applicant's

observations in reply expired on 3 May 1995, no observations in reply

had been received. Following a reminder sent to the applicant, he

informed the Commission by letter of 3 July 1995 that he wished to

pursue his application. The applicant has not submitted any

observations in reply.

THE LAW

1. The applicant complains that the levying of a court registration

fee in criminal cases infringes his right of access to court and is,

therefore, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

He argues that there should be no fee at all in criminal cases.

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

relevant, reads as follows:

"In the determination of (...) any criminal charge against him,

everyone is entitled to a fair (...) hearing (...) by an

independent and impartial tribunal (...)."

The Commission notes that the proceedings before the national

courts concerned an assessment of the applicant's income tax including

a 100% surcharge, on the basis that the applicant's failure to pay

sufficient taxes was due to his gross negligence or intent. The

Commission recalls that fiscal proceedings concerning tax assessments

including a surcharge of a punitive character, as in the present case,

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

(Eur. Court H.R., Bendenoun judgment of 24 February 1994, Series A no.

284, p. 20, para. 47). Article 6 para. 1 (Art. 6-1) of the Convention

is, therefore, applicable to the proceedings at issue.

The Commission recalls that one of the elements of the right to

a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention is the right to a court. One of the aspects of the right to

a court is the right of access to a court (cf. Eur. Court H.R., Deweer

judgment of 27 February 1980, Series A no. 35, p. 25, para. 49; and

Eur. Court H.R., Ashingdane judgment of 28 May 1985, Series A no. 93,

p. 24, para. 55).

The right of access to court is, however, not absolute but may

be subject to limitations. In general, in considering limitations on

access to court, the Commission must examine whether the limitation on

access impaired the essence of that right, pursued a legitimate aim and

bore a reasonable relationship of proportionality to that aim in the

circumstances (cf. Eur. Court H.R. Ashingdane judgment, ibid., p. 24-

25, para. 57; and, Eur. Court H.R., Tolstoy Miloslavsky judgment of

13 July 1995, Series A no. 323, para. 59).

The present case relates to the requirement in tax proceedings

to pay a court registration fee if an appeal is lodged with the Court

of Appeal or the Supreme Court.

It appears that the applicant chose not to file an objection

against the tax assessment with the tax inspector and took his case

directly to the Court of Appeal.

The Commission has previously decided that the Contracting

Parties are not debarred from making regulations governing the access

of litigants to an appellate court (cf. No. 8407/78, Dec. 6.5.80, D.R.

20, p. 179; and No. 11122/84, Dec. 2.12.85, D.R. 45, p. 246) and that

regulations concerning court registration fees undoubtedly serve the

purpose of assuring a proper administration of justice (No. 14592/89,

Dec. 13.12.89, unpublished).

The Commission observes that in the present case the aim of

levying a court registration fee is to cover part of the expenses of

the administration of justice and to discourage the lodging of

prospectless appeals. The Commission has further noted the limited

amount of the fee, and the possibilities for its reduction and/or

reimbursement.

The Commission finds that the levying of the court registration

fee at issue was in conformity with the criteria formulated in the

Convention organs' case-law, and cannot be regarded as constituting an

unacceptable obstacle to the lodging of an appeal with the Court of

Appeal or the Supreme Court.

It follows that this part of the application is manifestly ill-

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

Convention.

2. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention of his inability to respond to the written

submissions in reply of the Deputy Minister of Finance and to the

written conclusions of the Procurator General in the proceedings before

the Supreme Court.

The Government submit that the proceedings before the Supreme

Court at issue fall outside the scope of Article 6 (Art. 6) of the

Convention. Given the fact that the proceedings before the Supreme

Court did not concern the imposition of a fiscal fine, but the question

whether the Court of Appeal could lawfully reject the applicant's

appeal for failure to pay the required court fees, the Government are

of the opinion that the proceedings in cassation did not constitute a

determination of a criminal charge within the meaning of Article 6

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

The Commission recalls its finding that the proceedings at issue

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

(see para. 1 above). The way in which Article 6 para. 1 (Art. 6-1) of

the Convention is applied in proceedings in cassation depends, however,

on the special features of such proceedings (cf. No. 10938/84, Dec.

9.12.86, D.R. 50, p. 98).

The fact that the present proceedings before the Supreme Court

were limited to a preliminary issue, i.e. the question whether the

Court of Appeal had correctly declared the applicant's appeal

inadmissible for failure to comply with a procedural requirement,

cannot automatically lead to the finding that the proceedings no longer

involved a determination of a criminal charge within the meaning of

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

Section 25 of the WARB, the Commission considers that the main object

of the proceedings before the Supreme Court remained the determination

of a criminal charge within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

a. As regards the applicant's complaint that he could not respond

to the written submissions in reply of the Deputy Minister of Finance,

the Commission notes that the applicant, either when introducing his

appeal in cassation or within fourteen days after having received the

written submissions in reply of the Deputy Minister of Finance, had the

opportunity to ask the Supreme Court for a hearing in order to present

his objections to these submissions but that he did not avail himself

of this opportunity.

In these circumstances the Commission cannot find that the

proceedings before the Supreme Court as regards the submissions of the

Deputy Minister of Finance were contrary to the requirements of Article

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

It follows that this part of the application is also manifestly

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

Convention.

b. As regards the applicant's further complaint that he could not

respond to the written conclusions of the Procurator General, the

Commission is of the opinion, after a preliminary examination of the

substance of this complaint in the light of the parties' submissions,

that it raises issues of fact and law requiring an examination on the

merits. This complaint cannot, therefore, be declared inadmissible as

being manifestly ill-founded. No other grounds for inadmissibility have

been established.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that he could not respond to the written

conclusions of the Procurator General to the Supreme Court;

and,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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J.J. v. THE NETHERLANDS

J.J. v. THE NETHERLANDS

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