SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46300/99 by Marpa Zeeland B.V. and Metal Welding Service B.V. against the Netherlands

The European Court of Human Rights (Second Section) , sitting on 6 April 2004 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 27 October 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court's partial decision of 1 October 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant companies,

Having deliberated, decides as follows:

THE FACTS

The applicant companies, Marpa Zeeland B.V. and Metal Welding Service B.V., are both limited liability companies with legal personality under Netherlands law ( besloten vennootschap ) which have their registered office in Kwadendamme. The applicant companies are represented by their director, Mr D.C. Wouterse.

A. The circumstances of the case

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

At some stage in 1989, officials of the Fiscal Intelligence and Information Service ( Fiscale Inlichtingen- en Opsporingsdienst , “FIOD”) instituted an investigation into the applicant companies as well as into their director, Mr Wouterse, on suspicion of forgery ( valsheid in geschrifte ) and tax fraud. On 29 October 1990 the FIOD searched the premises of the applicant companies and seized documents and items belonging to the companies. That same day Mr Wouterse was interviewed. The FIOD's investigation was concluded on 7 August 1991. The official report of the investigation was completed on 17 August 1991. Twenty-one witnesses were heard during the investigation.

In April 1992 the scope for an out-of-court settlement in the cases of the applicant companies and Mr Wouterse was explored. By letter of 24 April 1992 counsel for the applicant companies and Mr Wouterse asked the public prosecutor to allow them a period of three weeks in which to consider the question whether to request a preliminary judicial investigation ( gerechtelijk vooronderzoek ) so that witnesses could be heard by the FIOD or by the investigating judge ( rechter-commissaris ). On 28 July 1992 the applicant companies and Mr Wouterse requested a preliminary judicial investigation, which was then applied for on 4 August 1992.

On 28 October 1992 the investigating judge sent a number of official reports of witness hearings to counsel for the applicant companies, asking him what witnesses remained to be heard. On 10 November 1992 the investigating judge informed counsel that he had heard extensive testimony from a large number of witnesses and that in doing so he had given counsel the benefit of the doubt “with regard to the question of whether hearing these witnesses was necessary to the preliminary judicial investigation”. As to five new witnesses that counsel had put forward, he stated that counsel should provide detailed reasons why it was necessary to the preliminary judicial investigation for them to be heard.

The preliminary judicial investigation into the applicant companies was concluded on 9 February 1993.

The applicant companies and Mr Wouterse submitted a request to the investigating judge on 16 February 1993 to reopen the preliminary judicial investigation because they still had five witnessed they wished to be heard. The investigating judge rejected this request by decision of 19 February 1993. The reason he gave was that the applicant companies and Mr Wouterse had not demonstrated that hearing the five persons was in the interests of the investigation. The investigating judge also took the view that the defence would not by any reasonable standards be prejudiced as a result of the fact that these five persons had not been heard.

On 25 August 1993 the preliminary judicial investigation into the applicant companies was closed. Notice of closure was served on 3 September 1993. On 5 October 1993 notification of further proceedings against the applicant companies was sent to counsel.

On 29 December 1993 notices of summons and accusation were served on Mr Wouterse. The cases against the applicant companies and Mr Wouterse were dealt with at the same sitting but were not joined.

Following a hearing on 20 January 1994, the Middelburg Regional Court ( arrondissementsrechtbank ) convicted the applicant companies and Mr Wouterse on 3 February 1994. It imposed fines of 600,000 Netherlands guilders (NLG; 272,000 Euros - EUR) and NLG 1,000,000 (EUR 454,000) respectively on the applicant companies and sentenced Mr Wouterse to two years' imprisonment.

Both the applicant companies and Mr Wouterse lodged appeals with the Court of Appeal ( gerechtshof ) of The Hague on 9 February 1994, followed the next day by the Public Prosecutions Department ( openbaar ministerie ). A first hearing in all three cases took place on 28 June 1995. Prior to the second hearing, scheduled for 4 December 1995, the Advocate General ( advocaat-generaal ) to the Court of Appeal initiated negotiations with counsel for the applicant companies and Mr Wouterse aimed at the withdrawal of the appeals. In a letter of 2 November 1995, counsel wrote as follows to the Advocate General:

“Mr Wouterse is in principle willing to accept that the judgments of the Middelburg Regional Court in the criminal proceedings against [the applicant companies] become final and conclusive. However, my client is only prepared to withdraw the appeals if the Public Prosecutions Department explicitly abandon the execution of those judgments and if the tax authorities also forgo the implementation of further measures of collection in respect of [the applicant companies] and/or Mr Wouterse personally. As regards the tax proceedings which are currently still pending as well as potential future fiscal and/or civil proceedings, the tax authorities and the public prosecutions department should already at the present time commit to waive their right to invoke the formal force of law of these judgments and/or their contents. ...”

In reply, the Advocate General wrote on 9 November 1995:

“I suggested withdrawing the appeals in the cases of [the applicant companies] for practical reasons since you still have not provided me with any clarification of the structure of the legal persons, and in particular of the fact that there was no responsible natural person; you promised both of these things at the hearing.

...

Both the public prosecutions department and the tax authorities will, either together or by themselves, make use of the (contents of the) judgments in the widest sense of the word where this appears useful to them. ...”

The Public Prosecutions Department withdrew its appeals on 1 December 1995.

Just before the hearing of 4 December 1995 was about to start, Mr Wouterse and the Advocate General reached an agreement upon which Mr Wouterse withdrew his appeal and those of the applicant companies. In a letter to Mr Wouterse, also of 4 December 1995, counsel confirmed this agreement, stating that the appeals would be withdrawn and requests submitted for a remission of the sentences ( gratie ) imposed by the Middelburg Regional Court. This remission, according to counsel in his letter, would consist of the fines imposed on the applicant companies being reduced depending on the outcome of fiscal proceedings pending against these companies. The sentence imposed on Mr Wouterse was to be reduced to a period of imprisonment of one year, of which six months were to be suspended and the remainder converted into a number of hours of community service.

According to counsel and Mr Wouterse, the Advocate General had further undertaken that a positive recommendation on the requests for remission of sentence would be issued, both by the Advocate General himself and by the Court of Appeal.

In its judgments of 4 December 1995, the Court of Appeal noted that the appeals had been withdrawn and that no hearing of the substance of the cases had taken place.

Also on 4 December 1995, counsel informed a colleague – counsel for the applicant companies in fiscal proceedings – of the withdrawal of the appeals in the criminal proceedings, stating that remission of sentence would be sought in respect of the judgments of the Middelburg Regional Court “which had now become final and conclusive”.

Requests for remission of sentence were lodged with the Ministry of Justice on 21 December 1995. The requests were forwarded for advice to the Middelburg Regional Court on 28 December 1995. On 2 February 1996 the Advocate General at the Court of Appeal of The Hague informed the Ministry that he was prepared to advise on the requests.

At the request of the Minister of Justice, the Public Prosecutor's Office at the Middelburg Regional Court advised on the requests for remission of sentence on 5 August 1996. Its recommendation was that the requests of both the applicant companies and Mr Wouterse be dismissed.

On 17 September 1996 the Minister of Justice sought information from the Advocate General pursuant to Article 12 of the Pardons Act ( Gratiewet ). On 22 October 1996, referring to a probation and a psychiatric report, the Advocate General advised favourably on the request filed by Mr Wouterse. As far as the applicant companies were concerned, the Advocate General saw no grounds not to collect the fines imposed by the Regional Court in part or in full, in addition to the tax obligations.

On 5 November 1996 the Court of Appeal of The Hague also advised favourably in the case of Mr Wouterse and negatively in the case of the applicant companies.

On 14 January 1997 the requests for remission of sentence made on behalf of the applicant companies were rejected. The next day, counsel for the applicant companies and Mr Wouterse wrote to the Advocate General, informing him that he could not square these rejections with the undertakings given by the Advocate General. In reply, the Advocate General, in a letter of 17 February 1997, denied that he had given such an undertaking as regards the applicant companies.

On 29 January 1997 Mr Wouterse again lodged appeals with the Court of Appeal of The Hague against the three judgments of the Regional Court of 3 February 1994. That same day, the public prosecutor at the Middelburg Regional Court informed Mr Wouterse that he would proceed with the execution of the sentences imposed on the applicant companies by that court, in the light of the fact that the appeals against the judgments had been withdrawn in December 1994 and they had thus become final and conclusive.

On 20 March 1997 the Minister of Justice requested the Middelburg Regional Court once again to advise on Mr Wouterse's request for remission of sentence in view of the favourable recommendations from the Advocate General and the Court of Appeal.

The Public Prosecution Department advised favourably on Mr Wouterse's request on 1 May 1997. The Middelburg Regional Court concurred with the recommendation of the Advocate General and the Court of Appeal on 16 June 1997.

Meanwhile, at a hearing before the Court of Appeal on 2 June 1997, the Advocate General recommended that the appeals be declared inadmissible since it was not possible to reinstate an appeal once it had been withdrawn. He stated that he had indeed previously suggested to Mr Wouterse that he, Mr Wouterse, withdraw the appeal in the case against him and lodge a request for remission of sentence. However, he had never given an undertaking that such a request would be granted, but only that he would make a recommendation to that effect. He had made such a recommendation, but no decision had as yet been taken. In any event, as Mr Wouterse had been legally represented, he could have obtained his counsel's advice on this procedure. The Advocate General further confirmed that he had also suggested that the appeals in the cases against the applicant companies be withdrawn. He had done so because there was no longer any advantage to be gained since the companies were bankrupt.

In reply, Mr Wouterse argued that he had erred in his decision to withdraw the appeals and that he would certainly not have done so had he known that it was the Minister of Justice who had the final say on the requests for remission of sentence; the undertaking given by the Advocate General had led him to believe that the requests would be granted. Mr Wouterse further stated that the applicant companies were not bankrupt and continued to exist.

At a subsequent hearing on 8 August 1997, the Advocate General informed the Court of Appeal that on 19 July 1997 the request for remission of sentence in the case against Mr Wouterse had been granted. Neither Mr Wouterse nor his counsel had previously been informed of this decision. Mr Wouterse subsequently decided to withdraw his appeal.

In its judgments of 1 December 1997 in the cases against the applicant companies, the Court of Appeal held as follows:

“The talks between the Advocate General on the one hand and counsel and Wouterse – in his capacity both as accused in the criminal proceedings against himself and as representative in the criminal proceedings against the companies – on the other, took place at the initiative of the Advocate General. According to the Advocate General, his aim was to prevent the execution of the custodial sentence imposed on Wouterse by the first instance court in view of the reports concerning Wouterse drawn up by a psychiatrist and the probation services. The Advocate General had further assumed that the companies offered no redress.

The Court of Appeal considers it likely that Wouterse ... was taken by surprise by this course of events and that he was under the impression that he would be able to rely on a favourable outcome if he withdrew the appeals.

In the opinion of the court, it is incomprehensible that the Advocate General advised as he did ... Both Wouterse and the companies ... had an interest in the appeals. In addition, it is difficult to see why the court, in its determination of the criminal charges against Wouterse, might not have been expected to have regard to the reports concerning his mental welfare, just like the Advocate General and in accordance with his advice.

The solution favoured by the Advocate General on the other hand, i.e. a request for remission of sentence supported by him, was by no means certain to succeed. After all, the withdrawal of the appeal entailed that it was firstly for the public prosecutor and the Regional Court to advise on the request for remission of sentence and their advice was apparently not to grant the request. It is true that it appears from the documents in the file that the Advocate General nevertheless attempted to find acceptance for his advice within the Ministry of Justice and that a decision in favour of Wouterse – in the shape of community service – was eventually made, but this decision was a long time coming and was preceded by a rejection of the companies' requests for remission.

Due to the fact that a decision on his request for remission remained forthcoming and in view of the rejection of the requests of the applicant companies, Wouterse again lodged an appeal in all three cases, partly also because the public prosecutor appears to be planning to proceed to the execution of the fines imposed in the criminal proceedings against the companies.

Wouterse fears that this execution may affect himself and/or his spouse personally. ... In view of the above, the court is of the opinion that Wouterse was persuaded to withdraw the appeal on improper grounds ( op oneigenlijke gronden ) ... by the Advocate General, that this has prejudiced the accused's reasonable interests in this case and that, accordingly, the newly lodged appeal should be considered as a prolongation of the original appeal.”

The Court of Appeal then proceeded to find that a reasonable time within the meaning of Article 6 § 1 of the Convention had been exceeded and disallowed the prosecution of the cases against the applicant companies.

The Advocate General filed appeals on points of law ( beroep in cassatie ) with the Supreme Court ( Hoge Raad ). On 22 September 1998 the Supreme Court upheld the appeals. It ruled that the Court of Appeal's judgments of 4 December 1995 had become final and conclusive ( onherroepelijk ) since the legal remedy available against those judgments – an appeal on points of law – had not been used within the time-limit set by law (14 days). Given that the Court of Appeal had established in those judgments that the appeals against the decisions of the Regional Court had been withdrawn, the accused's newly lodged appeals could not be admitted.

B. Relevant domestic law

The system of legal remedies against judgments in criminal proceedings is a closed one in the sense that the Code of Criminal Procedure ( Wetboek van Strafvordering –“CCP”) lays down when a legal remedy is available and of what it consists. The general rule is that appeal lies to the Courts of Appeal from final judgments given at first instance and appeal on points of law to the Supreme Court from a final judgment given on appeal.

Pursuant to Article 408 of the CCP, appeal proceedings must be instituted within fourteen days of the final judgment. Appeals on points of law must also be lodged within fourteen days of the final judgment (Article 432 of the CCP).

Remission of sentence may be granted by royal decree ( Koninklijk Besluit ) – that is a decree signed by the Monarch and the Minister responsible – pursuant to Article 122 § 1 of the Netherlands Constitution ( Grondwet ).

For the purposes of the present case, a request for remission may be lodged in respect of a sentence imposed by a judgment that has become final and conclusive (Article 558 of the CCP). Before a decision is taken, the request is sent for advice to the court which imposed the sentence, as well as to the Public Prosecution Department (Articles 3 and 5 of the Pardons Act). Additional information may also be obtained (Article 12 of the Pardons Act).

Having considered the court's recommendations and the Minister of Justice's report, the Monarch decides on the request.

COMPLAINTS

The applicant companies complained that they had been deprived of a fair trial as guaranteed by Article 6 § 1 of the Convention in that the Advocate General to the Court of Appeal of The Hague had persuaded Mr Wouterse to withdraw their appeals and had convinced him that the requests for a remission of sentence would succeed. However, when their requests for remission of sentence were rejected, it had proved impossible to have their appeals reinstated.

Secondly, the applicant companies complained of the length of the criminal proceedings against them.

THE LAW

The applicant companies complained of a lack of fairness in the criminal proceedings against them, as well as of the duration of those proceedings. They invoked Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by ... [a] tribunal ... .”

A. Fair hearing

The Government argued that it could not be established that the Advocate General had undertaken to give a positive recommendation on the applicant companies' request for remission of sentence. Indeed, at the hearing before the Court of Appeal on 2 June 1997, the Advocate General stated that he had never made such a promise, but that he had suggested that the appeals in the cases against the applicant companies be withdrawn as those companies had gone bankrupt. The Government submitted that it must have been clear to Mr Wouterse that the Advocate General had been wrongly informed about the solvency of the companies since he himself had pointed out at that hearing that the companies were not bankrupt. Moreover, it also appeared from the Advocate General's letter of 9 November 1995 to counsel that he had proposed that the appeals be withdrawn for merely practical reasons.

In the view of the Government, counsel for the applicant companies may have been deemed familiar with the statutory procedures with regard to requests for remission of sentence. Even if the Advocate General had given an undertaking with regard to such a request, counsel ought to have advised his clients on the procedures to be followed and the consequences of certain procedural steps. A mistake of law on the part of counsel for the applicant companies could not be laid at the Government's door.

The applicant companies submitted that the Advocate General had contacted their counsel in the week prior to the hearing of 4 December 1995 with the suggestion that the appeals be withdrawn. Since a report issued in October 1995 by a forensic accountant of the National Criminal Intelligence Service ( Centrale Recherche Informatiedienst ) had put the companies in a strong position in the criminal proceedings, Mr Wouterse and counsel had decided not to withdraw the appeals. However, at the meeting between Mr Wouterse, counsel and the Advocate General on 4 December 1995, the latter had said that if Mr Wouterse was to withdraw the appeals, the prosecution would do the same – even though, unbeknownst to Mr Wouterse, the prosecution had already withdrawn its appeals on 1 December 1995 –, and the Advocate General had further promised that he would deal with the requests for remission of sentence. The applicant companies insisted that if they had been informed that the Advocate General was unable to deal with the requests for remission himself or that he could not have a decisive influence on the outcome of these requests, their appeals would not have been withdrawn. Given that the appeals had thus been withdrawn under the influence of error, that withdrawal had not been legally valid and the applicant companies' new appeals should have been allowed to proceed.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Length of proceedings

The Government assumed that the relevant period began on 29 October 1990, when documents and items belonging to the applicant companies were seized. The period ended on 18 December 1995, this being the date on which the judgments of the Middelburg Regional Court became final and conclusive, the appeals against them having been withdrawn on 4 December 1995. The Government were of the opinion that the period after 18 December 1995 should not be taken into account because the applicant companies, or in any event Mr Wouterse or his counsel, knew or should have known that when a party to proceedings voluntarily withdraws a legal remedy, the judicial decision against which the appeal was directed becomes final and conclusive, and thus enforceable.

According to the Government, the proceedings against the applicant companies had thus lasted for five years, one month and 20 days.

They further argued that the cases against the applicant companies could not be described as straightforward: during the pre-trial investigation a large number of witnesses were heard, the applicant companies' accounts could not be accessed, the impounded computers had to be investigated and it was necessary to seek clarification of the structure of the companies and the absence of a responsible natural person. They further submitted that the applicant companies had contributed to the length of the proceedings, and in particular to the length of the preliminary judicial investigation, since numerous witnesses were heard at the request of the applicant companies and Mr Wouterse. In hearing these witnesses the investigating judge had given the applicant companies and Mr Wouterse the benefit of the doubt when it came to assessing the need to question a particular witness. Nor had the applicant companies and Mr Wouterse acted with any great dispatch in passing on the names of witnesses. In the view of the Government, the judicial authorities had acted speedily at first instance and in the appeal proceedings that were later withdrawn. A period of less than two years had elapsed between the service of the notice of summons and accusation on 29 December 1993 and the rulings of the Court of Appeal on 4 December 1995.

The applicant companies, while agreeing with the Government that the relevant period began on 29 October 1990, averred that this period only came to an end with the Supreme Court's judgment of 22 September 1998. In their view, therefore, the proceedings had lasted  seven years, ten months and 24 days. The applicant companies did not address in more detail the issue of the alleged unreasonableness of this period.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court unanimously

Declares admissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President