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AS TO THE ADMISSIBILITY OF

Application No. 22046/93

by H.J.B.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 July 1995, 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

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 31 March 1993 by

H.J.B. against the Netherlands and registered on 11 June 1993 under

file No. 22046/93;

Having regard to :

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

the Commission;

- the Commission's decision of 12 October 1994 to communicate the

application;

- the observations submitted by the respondent Government on

17 January 1995 and the observations in reply submitted by the

applicant on 29 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1943, and resides at

Amsterdam. Before the Commission he is represented by Mr. J. Groen, a

lawyer practising in The Hague.

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

summarised as follows.

Between 1 October 1982 and the beginning of 1983 the applicant

worked for a Dutch company with limited liability, Y., in the

Netherlands. In 1983 he moved to Belgium.

In 1983 the applicant founded and, until 1985, was managing

director of a Belgian advertising company with limited liability, X.

In December 1985 the Dutch tax authorities and the Government

Audit Department (Rijksaccountantsdienst) investigated the Y. company.

As a result of their findings, the Fiscal Intelligence and

Investigation Department (Fiscale Inlichtingen en Opsporingsdienst -

hereinafter referred to as "FIOD") started an investigation in August

1986 into allegations of fraud perpetrated by the Y. company. In the

course of this investigation a large number of people who had been

involved with the Y. company over the years were heard. In September

1986 the accounts of the Y. company were confiscated by the FIOD.

On 25 November 1986 the applicant, who in the meantime had

returned to the Netherlands, was questioned by officers of the FIOD,

since it had appeared from the Y. company's accounts that the X.

company had charged the Y. company more for certain services than other

companies had done for similar services.

Before being questioned by the FIOD, the applicant was informed

that he was under no obligation to answer the questions put to him. The

applicant made a statement and admitted having drawn up falsified

invoices for the Y. company but refused to answer questions about

certain particular invoices since, at that time, his accounts were not

available to him. He stated he would revert to the matter together with

his lawyer. He was also confronted with an incriminating statement made

by one of the founders of the Y. company to the FIOD on 24 November

1986, claiming that the applicant had committed fraudulent acts. The

applicant refused to sign the minutes of the questioning without

previously having consulted his lawyer.

On 25 February 1987 the FIOD questioned the applicant, in the

presence of his lawyer, for a second time. He was again informed that

he was under no obligation to answer the questions put to him. The

applicant answered certain questions and informed the FIOD that he was

unable to consult his accounts, since these were held by his Belgian

accountant who refused to hand them over unless the applicant would pay

him an outstanding debt. The applicant again refused to sign the

minutes of the questioning, although he declared their contents to be

correct.

On 9 March 1987 the applicant was arrested and detained on remand

on suspicion of fraud. According to the Government he was released on

17 March 1987; the applicant claims, however, that he was released on

14 March 1987.

The FIOD closed its investigation at the end of May 1987 and the

resulting comprehensive minutes, dated 26 May 1987, were received by

the Prosecution Department (Openbaar Ministerie) of Amsterdam on 29

July 1987. These comprehensive minutes contained, inter alia, the

records of the interviews of the FIOD with the applicant which had

taken place on 25 November 1986, 25 February and 9 March 1987. In these

records the applicant is referred to as a suspect.

On 27 December 1988 the applicant was summoned to appear on 17

January 1989 before the Regional Court (Arrondissementsrechtbank) of

Amsterdam on charges of fraud.

The hearing on 17 January 1989 was adjourned by the Regional

Court in accordance with a request by the applicant's counsel, who

stated that he had received the case-file so late that he had been

unable to prepare the defence adequately.

A hearing took place on 11 April 1989. After having questioned

the applicant, the Regional Court adjourned the proceedings as the

available time was too short. Further hearings took place on 23 May,

4 July and 5 September 1989, during which the Regional Court heard a

number of witnesses. The Government contend that these witnesses were

heard at the request of the applicant's counsel. The applicant,

however, denies this and submits that the hearing of these witnesses

was requested by the counsel of a co-defendant.

On 19 September 1989 the Regional Court convicted the applicant

of fraud and incitement to fraud, and sentenced him to eighteen months'

imprisonment. In its judgment the Regional Court deemed the period

during which the Prosecution had been in possession of the case-file

without any investigation having taken place to have been undesirably

long ("onwenselijk lang"), but it held that this period had

nevertheless not exceeded a reasonable time.

The applicant, on 21 September 1989, and the prosecution, on 29

September 1989, filed an appeal against this judgment with the Court

of Appeal (Gerechtshof) of Amsterdam. On 25 June 1991 a hearing was

held before the Court of Appeal.

On 9 July 1991 the Court of Appeal quashed the judgment of 19

September 1989, convicted the applicant of fraud and incitement to

fraud and sentenced him to eight months' imprisonment. The Court of

Appeal rejected the applicant's argument that the prosecution should

be declared inadmissible as it could no longer be held that the

criminal charges against him would be determined within a reasonable

time as required by Article 6 para. 1 of the Convention. It held in

this respect that the proceedings at issue had started on 9 March 1987

with the applicant's arrest and not on 25 November 1986, when he was

questioned for the first time, since from this questioning he could not

reasonably have deduced that criminal charges would be brought against

him.

The applicant's appeal in cassation was rejected by the Supreme

Court (Hoge Raad) on 15 December 1992. As regards the applicant's

complaint of excessive length of the criminal proceedings against him,

the Supreme Court accepted the Court of Appeal's findings.

COMPLAINT

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

that the criminal proceedings against him, lasting from

25 November 1986 until 15 December 1992, were not terminated within a

reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 March 1993 and registered

on 11 June 1993.

On 12 October 1994 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits.

The Government's written observations were submitted on

17 January 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 29 March 1995.

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:

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

everyone is entitled to a (...) hearing within a reasonable time

by a (...) tribunal (...)."

The Government submit in the first place that the FIOD's

interviews with the applicant on 25 November 1986 and 25 February 1987

were conducted in the context of an audit at the Y. company in

connection with suspected tax fraud, in which the applicant had been

mentioned as someone who might have been involved in fraudulent

activities. The mere fact that he was informed at the beginning of

these interviews that he was not obliged to answer does not, in the

Government's view, mean that there was a criminal charge against him

at that moment or that his prosecution was in prospect. A criminal

charge against the applicant only existed from the moment of his arrest

and detention on 9 March 1987.

The Government further submit that the investigation carried out

by the FIOD was extensive and complex. They allege that, insofar as

there can be said to have been any delay in this case, this is at least

partly attributable to the applicant's counsel, who, during the

hearings before the Regional Court, repeatedly asked for the case to

be adjourned and for witnesses to be heard.

The applicant maintains that the period to be taken into

consideration started on the day of his first interview by the FIOD on

25 November 1986, during which he was told that he was not obliged to

answer and was considered a suspect, as is apparent from the

comprehensive minutes.

He submits that the investigation by the FIOD may have been

complex, but adds that this investigation had been completed by the end

of May 1987. The applicant points to a number of periods of inactivity

which are, in his opinion, wholly attributable to the State. He further

denies that his counsel requested the hearing of witnesses before the

Regional Court but submits that these witnesses were heard at the

request of the counsel of a co-defendant.

The Commission, after a preliminary investigation of the present

complaint in the light of the parties' submissions, considers that it

raises questions of fact and law which require an examination of the

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

being 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, unanimously,

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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H.J.B. v. the NETHERLANDS

H.J.B. v. the NETHERLANDS

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