Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17314/90

by Jakob Koos LEUTSCHER

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 December 1993, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

Mr. K. ROGGE, 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 29 June 1990 by

Jakob Koos LEUTSCHER against the Netherlands and registered on

17 October 1990 under file No. 17314/90;

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

1. The particular facts of the case.

The applicant is a Dutch national, born in 1927, and resides at

Alicante, Spain.

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

summarised as follows.

By letter of 14 December 1979 the Inspector of direct taxes

informed the applicant that an additional income tax for 1974 and an

additional capital tax for 1975 would be imposed, as it had appeared

that the applicant had not or not fully declared certain earnings and

capital in his tax declarations. Moreover, a 100% surcharge would be

imposed.

The applicant started proceedings against both assessments. In

respect of the additional income tax assessment for 1974 the Court of

Appeal (Gerechtshof) of Amsterdam in its judgment of 6 January 1988

quashed the additional assessment. The additional capital tax

assessment for 1975 was quashed by the Court of Appeal on 13 April

1988. The applicant's subsequent appeal to the Supreme Court (Hoge

Raad) against the decision of 13 April 1988 was rejected on 14 June

1989 for lack of legal interest, as an appeal in cassation could not

lead to a more advantageous decision for the applicant.

In addition criminal proceedings were brought against the

applicant on several charges of tax evasion between 1974 and 1977. On

7 june 1984 the Regional Court (Arrondissementsrechtbank) of Amsterdam

convicted the applicant and sentenced him in absentia to one year's

imprisonment and a fine of one million Dutch guilders.

In the subsequent appeal proceedings, the Court of Appeal of

Amsterdam on 13 March 1987 declared the public prosecution inadmissible

as it could no longer be held that the criminal charges against the

applicant would be determined within a reasonable time as required by

Article 6 para. 1 of the Convention. The penal proceedings were

consequently discontinued.

On 25 June 1987 the applicant submitted a compensation claim

within the meaning of Sections 90, 591 and 591a of the Code of Criminal

Procedure (Wetboek van Strafvordering) of 156,366.35 Dutch guilders for

the counsel's fees, expenses incurred by witnesses, costs of clerical

assistance and travelling and accommodation expenses he had allegedly

incurred in respect of the penal proceedings.

Following a hearing by the Court of Appeal in chambers on 20 July

1988 in the presence of the applicant and his lawyer, the Court of

Appeal, in its decision of 16 March 1990, awarded 1,492 guilders for

the costs claimed in respect of two witnesses, 822.09 guilders for the

applicant's administrative costs, and 1,802 guilders for his travel

expenses. The Court of Appeal rejected the claim for the remainder.

In respect of the applicant's compensation claim of 61,400

guilders for lawyer's fees, the Court held:

"Uit het procesdossier blijkt dat verzoeker betrokken was

bij een aantal vennootschappen en dat deze vennootschappen

onder leiding dan wel in opdracht van verzoeker zich hebben

schuldig gemaakt aan een aantal fiscale delicten waardoor

de Staat tot aanzienlijke bedragen is benadeeld. De

rechtbank heeft onder meer ter zake van deze feiten

verzoeker veroordeeld (...) De stukken betreffende het

opsporingsonderzoek noch de behandeling van het

verzoekschrift geven aanleiding tot twijfel aan de

juistheid van deze veroordeling. Onder deze omstandigheden

acht het hof, alle omstandigheden in aanmerking genomen,

geen gronden van billijkheid aanwezig voor toekenning van

een vergoeding ter zake van rechtsbijstand."

"It appears from the file that the applicant was involved

in a number of companies and that these companies, under

the management or orders of the applicant, have committed

a number of fiscal offences as a result of which the State

has been deprived of considerable sums. In respect of,

inter alia, these facts the Regional Court has convicted

the applicant (...) Neither the documents concerning the

investigation nor the examination of the request give rise

to doubt the correctness of this conviction. Under these

circumstances the court considers, all circumstances taken

into account, that there are no equitable grounds for

awarding compensation for legal assistance."

Under Dutch law no appeal could be lodged against the Court of

Appeal's decision of 16 March 1990.

In connection with the additional tax assessments the applicant

requested the tax authorities by letter of 27 August 1985 to provide

him with the Government Audit Department's reports and documents on his

personal tax matters and those of the companies with which he was

involved. He based this request on the Publicity of Public

Administration Act (Wet Openbaarheid van Bestuur).

On 18 September 1985, in the absence of a reaction to this

request, the applicant filed an appeal on the basis of the

Administrative Decisions Appeal Act (Wet Administratieve Rechtspraak

Overheidsbeschikkingen) with the Judicial Division of the Council of

State (Afdeling Rechtspraak van de Raad van State) against the presumed

refusal (fictieve weigering) by the tax authorities to decide upon the

request.

Following an invitation thereto by the President of the Judicial

Division, the Minister of Finance considered the applicant's request

as an objection which he rejected on 6 May 1986.

As a result of the applicant's subsequent appeal, the Judicial

Division on 10 November 1986 quashed the Minister's decision of 6 May

1986 for lack of motivation.

On 11 March 1987 the Minister of Finance, in a new decision,

again refused to provide the applicant with the requested information,

inter alia, on the ground mentioned in Section 1 para. 2 (b) of the

Publicity of Public Administration Act which, insofar as relevant, at

that time read:

"Een verzoek om informatie, vervat in documenten die zijn

opgesteld ten behoeve van intern beraad, wordt ingewilligd

behoudens voor zover het betrekking heeft op:

(...)

b. persoonlijke beleidsopvattingen van bewindslieden,

bestuurders of ambtenaren. (...)."

"A request for information, contained in documents, which

have been written for internal consultation, will be

granted except when it concerns:

(...)

b. personal views on policy by members of government,

administrators or civil servants. (...)."

Following the applicant's appeal, the Judicial Division on 3

February 1988 quashed the decision of 11 March 1987 insofar as the

applicant's request for information concerned the company Van Engelen

& Co. International B.V. and in respect of the period during which he

was director of this company.

On 16 January 1990 the Minister of Finance granted the

applicant's request in respect of the company Van Engelen & Co.

International B.V. and in respect of the period during which the

applicant was director of this company and rejected it, on the basis

of, inter alia, Section 1 para. 2 (b) of the Publicity of Public

Administration Act, in respect of certain parts of the documents

relating to the abovementioned company and period.

Following the applicant's appeal against this decision, the

Judicial Division on 7 September 1992 rejected the appeal insofar as

it concerned the Government Audit Department's report and quashed the

Minister's decision of 16 January 1990 in respect of certain other

documents, which according to the Minister were not (anymore)

available. In view of these circumstances the Judicial Division did not

consider it necessary for the Minister to take a new decision.

2. The relevant domestic law.

Section 591 para. 1 of the Code of Criminal Procedure provides:

"Aan de gewezen verdachte of zijn erfgenamen wordt uit 's

Rijks kas een vergoeding toegekend voor de kosten, welke

ingevolge het bij en krachtens de Wet tarieven in

strafzaken bepaalde ten laste van de gewezen verdachte zijn

gekomen, voor zover de aanwending dier kosten het belang

van het onderzoek heeft gediend of door intrekking van

dagvaardingen of rechtsmiddelen door het openbaar

ministerie nutteloos is geworden."

"Compensation, to be paid from the Treasury, is awarded to

the former suspect or his heirs for costs, which have been

borne by the former suspect pursuant to the Act on fees in

criminal cases, insofar as these costs were relevant for

the investigation or have become pointless by the

withdrawal of summonses or remedies by the public

prosecution."

Section 591a paras. 1, 2 and 4 of the Code of Criminal Procedure,

insofar as relevant, provides:

"1. Indien de zaak eindigt zonder oplegging van straf of

maatregel (...), wordt aan de gewezen verdachte of zijn

erfgenamen uit 's Rijks kas een vergoeding toegekend voor

zijn ten behoeve van het onderzoek en de behandeling der

zaak gemaakte reis- en verblijfskosten, berekend op de voet

van het bij en krachtens de Wet tarieven in strafzaken

bepaalde.

2. Indien de zaak eindigt zonder oplegging van straf of

maatregel (...), kan aan de gewezen verdachte of zijn

erfgenamen uit 's Rijks kas een vergoeding worden toegekend

voor de schade welke hij ten gevolge van tijdverzuim door

het gerechtelijk vooronderzoek en de behandeling der zaak

ter terechtziting werkelijk heeft geleden, alsmede in de

kosten van een raadsman. (...).

4. De artikelen 90 en 591, tweede tot en met vijfde lid

zijn van overeenkomstige toepassing."

"1. If a case comes to an end without imposition of a

punishment or a measure (...), compensation out of the

Treasury is awarded to the former suspect or his heirs for

his travel and accommodation costs, calculated in

accordance with the Act on fees in criminal cases, made in

respect of the investigation and the examination of the

case.

2. If a case comes to an end without imposition of a

punishment or a measure (...), compensation out of the

Treasury may be awarded to the former suspect or his heirs

for the damage which he has actually suffered as a result

of loss of time due to the preliminary judicial

investigation and the trial itself, as well as the fees of

a counsel. (...).

4. Sections 90 and 591, second up to and including fifth

paragraph also apply."

Section 90 para. 1 of the Code of Criminal Procedure reads:

"De toekenning van een schadevergoeding heeft steeds

plaats, indien en voorzover daartoe, naar het oordeel van

de rechter, alle omstandigheden in aanmerking genomen,

gronden van billijkheid aanwezig zijn."

"Compensation is awarded where, and insofar as, in the

opinion of the judge, taking all circumstances into

account, there are equitable grounds for it."

COMPLAINTS

The applicant complains under Article 6 paras. 1 and 3 (b) and

(d) of the Convention that both the additional tax assessments and the

penal proceedings against him were based on incorrect facts and that

he was denied the possibility to prove that both the assessments and

penal charges were unjust. He submits that the additional tax

assessments and penal charges were based on fiscal documents to which

he was denied access, which seriously impeded him in challenging the

assessments and charges. As a result thereof he did not have a fair

hearing before the Court of Appeal in respect of his claim for

compensation after the penal proceedings had been discontinued.

The applicant also complains that the Court of Appeal's reference

to the correctness of his conviction in first instance in its decision

of 16 March 1990 in respect of his compensation claim violated his

rights under Article 6 para. 2 of the Convention as this reference in

the decision not to grant him compensation for legal assistance

reflected the opinion that he was guilty of the offences he was charged

with, whereas the penal proceedings had been discontinued.

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

Convention that the reasonable time has been exceeded as a result of

the lengthy proceedings concerning his requests to be provided with

certain fiscal documents on which the additional tax assessments and

increases were allegedly based.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 June 1990 and registered on

17 October 1990.

On 2 September 1992 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were submitted on 15 January 1993

and the applicant submitted his observations in reply on 22 May 1993.

THE LAW

1. The applicant complains under Article 6 paras. 1, 2 and 3 (b)

(Art. 6-1, 6-2, 6-3-b) of the Convention that he did not receive a fair

hearing before the Court of Appeal in the proceedings concerning his

request for compensation for costs incurred in the criminal proceedings

against him.

The applicant further complains under Article 6 (Art. 6) of the

Convention that the additional tax assessments and the criminal

proceedings against him were founded on incorrect facts and that he was

denied the possibility to prove this, as he was refused access to

certain fiscal documents he considered relevant.

The applicant finally complains under Article 6 para. 1

(Art. 6-1) of the Convention of the length of the proceedings in

respect of his requests to be provided with certain fiscal documents.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair (...) hearing within a reasonable

time by a (...) tribunal (...).

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the

following minimum rights:

(...)

b. to have adequate time and facilities for the preparation of

his defence;

(...)."

2. Concerning the applicant's complaint that the additional tax

assessments were founded on incorrect facts and that he has been denied

the possibility to prove this, as he was refused access to certain

relevant fiscal documents, the Commission recalls that Article 6 para.

1 (Art. 6-1) of the Convention is not applicable to proceedings

relating to tax assessments (cf. No. 9908/82, Dec. 4.5.83, D.R. 32 p.

266). Even if Article 6 (Art. 6)would apply to these proceedings in

view of the 100% surcharge imposed, the Commission notes that the

additional tax assessments at issue have been quashed by the Amsterdam

Court of Appeal. The applicant, therefore, can no longer claim to be

a victim within the meaning of Article 25 (Art. 25) of the Convention.

It follows that this part of the application must be rejected

under Article 27 para. 2 (Art. 27-2) of the Convention.

3. Insofar as the applicant complains that the criminal proceedings

against him were not in conformity with Article 6 (Art. 6)of the

Convention the Commission recalls that under Article 26 of the

Convention it may only deal with an application which is introduced

within six months as from the date on which the final decision was

taken.

The Commission notes that the final decision on the criminal

charges against the applicant was taken by the Court of Appeal on

13 March 1987, when it declared the public prosecution inadmissible.

This is more than six months before the introduction of the present

application.

This part of the application must, therefore, be rejected under

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

4. Insofar as the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention of the length of the proceedings

concerning his requests for access to certain fiscal documents, the

Commission does not find that these proceedings involved a

determination of civil rights and obligations or of any criminal charge

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

is consequently not applicable to these proceedings.

This part of the application must, therefore, be rejected as

incompatible ratione materiae with the provisions of the Convention

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

5. The applicant further complains under Article 6 paras. 1, 2 and

3 (b) (Art. 6-1, 6-2, 6-3-b) of the Convention that he did not receive

a fair hearing before the Court of Appeal in the proceedings concerning

his request for reimbursement of his lawyer's fees and that the Court

of Appeal's decision of 16 March 1990 violated the principle of

presumption of innocence.

Insofar as the applicant invokes Article 6 para. 1

(Art. 6-1) of the Convention, the Government consider that this

provision is not applicable to proceedings concerning a request for

reimbursement of lawyer's fees following a discontinuation of criminal

proceedings, since such proceedings do not involve a determination of

a civil right.

In respect of the applicant's complaint under Article 6 para. 2

(Art. 6-2) of the Convention the Government submit that the Court of

Appeal's decision of 16 March 1990 did not violate the principle of

presumption of innocence as the Court of Appeal in reaching this

decision took all relevant facts into account and merely wished to

state that, although the criminal proceedings had been discontinued,

there still existed a serious suspicion that the applicant had

committed the offences in question.

The applicant submits that the proceedings on his request for

compensation involved a determination of his civil rights and

obligations within the meaning of Article 6 para. 1 (Art. 6-1), since

Dutch law provides a possibility to be awarded compensation for

lawyer's fees when criminal proceedings end without the imposition of

a punishment or a measure. The Court of Appeal, by referring to his

conviction by the Amsterdam Regional Court, violated the principle of

presumption of innocence, the more so since he was convicted in

absentia and therefore had not been able to defend himself. He further

alleges that the different proceedings between 1979 and 1987 also

violated his rights under Articles 3, 5, 7 and 8 (Art. 3, 5, 7, 8) of

the Convention.

The Commission, having regard to the parties' submissions under

Article 6 (Art. 6) of the Convention in respect of the proceedings on

the applicant's request for reimbursement of his lawyer's fees

following the discontinuation of the criminal proceedings against him

and in respect of the alleged violation of his right to be presumed

innocent, considers that this part of the application raises issues of

fact and law which can only be resolved by an examination of the

merits. This part of 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, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaints under Article 6 (Art. 6) of the Convention

in respect of the proceedings on the applicant's request for

reimbursement of his lawyer's fees following the discontinuation of the

criminal proceedings against him and in respect of his right to be

presumed innocent;

and, by a majority,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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LEUTSCHER v. THE NETHERLANDS

LEUTSCHER v. THE NETHERLANDS

LEXI