SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 77546/01 by Antoni Cornelis Philippe VERMEULEN and Others against the Netherlands

The European Court of Human Rights (Second Section), sitting on 30 September 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , 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 on 19 November 2001,

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

Having deliberated, decides as follows:

THE FACTS

The first two applicants, Messrs Antoni C.P. Vermeulen and Paulus H.C.J.M. Weeink , are Netherlands [Note1] nationals, who were born in 1945 and 1954, and live in Nijkerk and The Hague, respectively. The third applicant is Centacon B.V., a limited liability company possessing legal personality under Netherlands law ( besloten vennootschap ) which has its registered office in The Hague. The second applicant is the director of Centacon B.V. The applicants are represented before the Court by Ms J. Kuijper , a lawyer practising in Amsterdam.

A. The circumstances of the case

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

All three applicants were prosecuted on charges of deliberately having submitted incorrect or incomplete tax returns. On 29 November 1999 the Court of Appeal ( gerechtshof ) of Amsterdam found them guilty and imposed partially suspended fines. The applicants lodged appeals on points of law ( beroep in cassatie ) with the Supreme Court ( Hoge Raad ).

In his advisory opinion of 16 January 2001, one of the advocates-general ( advocaten-generaal ) of the Supreme Court recommended that the appeals be dismissed. A copy of this opinion was sent to the applicants’ representative. The covering letters accompanying the opinion stated:

“If you wish to submit a reply in writing, you should send this to the Supreme Court within two weeks.”

On 26 January 2001 the applicants’ representative sent their reply to the Supreme Court by fax and by mail.

The Supreme Court rejected the appeals on 22 May 2001 in reasoned judgments. These judgments included the mention that counsel’s reply in writing to the advisory opinion of the advocate-general had not been received within the time-limit set by law.

Counsel for the applicants subsequently requested the Supreme Court’s Registrar to determine whether the arrival of her fax containing the applicants’ reply had been registered on 26 January 2001. In a letter of 17 October 2001, the Registrar of the Supreme Court’s criminal-law division ( strafkamer ) replied as follows:

“Further to your fax of 10 October last, I confirm herewith that the fax sent by you on 26 January 2001 was received by the Supreme Court. Due to an administrative error, however, the fax was not included in the case file. I sincerely apologise for this course of events.

The mention in the judgment that the reply in writing had not been received “within the time-limit set by law” is therefore incorrect. However, it does not follow from this mention that the Supreme Court did not take cognisance of the contents of the reply in writing.”

In reply to a number of questions put by the Court on 27 June 2003, the Government submitted that the hard copy of the applicants’ reply to the advisory opinion of the advocate-general had been received by the Supreme Court on 1 February 2001, that the reply had been added to the file immediately and that, on being asked, the Supreme Court had declared that it had taken cognisance of the reply before giving judgment.

B. Relevant domestic law and practice

After the Court’s judgment in the case of Borgers v. Belgium (judgment of 30 October 1991, Series A no. 214-B) the Code of Criminal Procedure ( Wetboek van Strafvordering ) was amended. According to Article 439 § 5, an appellant in an appeal on points of law in criminal proceedings may submit written comments in reply to the advisory opinion issued by the Procurator-General within two weeks of the transmission of the advisory opinion to him or her.

National law does not provide for the consequences of the submission of written comments outside the two weeks’ time-limit. According to the drafting history of the bill which led to the enactment of Article 439 § 5, it is for the Supreme Court to decide whether or not account should be taken of written comments submitted after the time fixed for that purpose ( Kamerstukken [Parliamentary Documents] II, 1997-1998, 25 240, nr. 6, p. 9).

Some years prior to the Supreme Court judgment in the present case, notes in a judgment stating that a reply to the advisory opinion had not been received on time were accompanied by a statement that the Supreme Court had not taken this reply into consideration. However, in their observations on the admissibility and merits of the present application the Government stated that the criminal-law division of the Supreme Court abandoned that standard wording because it did not, in general, reflect actual practice. In practice, even comments not submitted on time are added to the case file of which the Supreme Court takes cognisance. In such cases, the Supreme Court tends merely to observe in its judgment that the reply to the advisory opinion was not received within the period laid down by law.

In its judgments, the Supreme Court responds neither to the content of the advisory opinion of the Procurator-General or one of the advocates-general, nor to the comments submitted by the accused in reply to that opinion.

COMPLAINT

The applicants complained that they did not have a fair hearing within the meaning of Article 6 § 1 of the Convention.

THE LAW

The applicants complained that the Supreme Court did not take cognisance of their written comments in reply to the advisory opinion of the advocate-general and, thus, did not have regard to these comments when it determined their appeals on points of law. According to the applicants, this constituted a breach of Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government argued that the applicants could not be considered victims within the meaning of Article 34 of the Convention. The letter of 17 October 2001 from the registry of the Supreme Court showed that the applicants’ fax had not been added to the case file, with the result that it was wrongly assumed that the written comments, when they arrived by normal mail, had been received late. However, given that the applicants had been able to reply to the advisory opinion of the advocate-general and that the Supreme Court had taken cognisance of those replies, there was consequently no legal interest to be served by pursuing the application.

In the view of the Government, the applicants’ complaints were in any event unfounded given that, in practice, the Supreme Court does take cognisance of replies to the advocate-general’s advisory opinion even if they have been submitted late. Therefore, notwithstanding the fact that the judgments did not explicitly state this or wrongly stated that the comments had been received late, the Supreme Court had taken cognisance of the applicants’ replies and had been able to take them into consideration in its assessment.

As regards the applicants’ claim to the contrary, namely that the Supreme Court had not taken their replies into consideration, the Government referred to the Court’s case-law according to which, firstly, the obligation under Article 6 § 1 of the Convention for courts to give reasons for their decisions cannot be understood as requiring a detailed answer to every argument and, secondly, an appellate court, when dismissing an appeal, may, in principle, simply endorse the reasons in the lower court’s decision (see Van de Hurk v. the Netherlands , judgment of 19 April 1994 [AVS2] , Series A no. 288, p [AVS3] . 20, § [AVS4] 61, García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I). The applicants could have inferred from the judgments of the Supreme Court the considerations that had led that court to reject their appeals, even though no mention was made of their reply to the advisory opinion. In this respect, it was also to be borne in mind that the Supreme Court never discussed the content of the advisory opinion or the accused’s response.

The applicants questioned whether the Government’s information to the effect that cognisance had been taken of their reply had been obtained from the Supreme Court itself or whether it was inferred from the letter of the Supreme Court’s registry. If the latter, they disputed that any such inference could be drawn from that letter.

Even if “cognisance had been taken” of their reply, it was by no means certain that the reply had actually been taken into consideration by the Supreme Court in its assessment of the cases. On the contrary, if such had been the case, it might be assumed that this would have been stated explicitly in the judgments.

The Court considers that it is not necessary to examine whether or not the applicants are victims within the meaning of Article 34 of the Convention since the application is in any event manifestly ill-founded for the reasons set out below.

The Court reiterates that the right to adversarial proceedings entails, inter alia , the opportunity for parties to criminal proceedings to comment on observations filed by an independent member of the national legal service, with a view to influencing the court’s decision (see, among many authorities, Meftah and Others v. France [GC], no. 32911/96, § 51, ECHR 2002-VII, and J.J. v. the Netherlands , judgment of 27 March 1998, Reports of Judgments and Decisions 1998-II, p. 613, § 43 in fine ). In the present case it is not in dispute that the applicants were provided with a copy of the advisory opinion of the advocate-general and that written comments in reply were duly submitted on their behalf, both by fax – sent and received within the time-limit – and by mail – received by the Supreme Court outside the time-limit.

The mention in the judgments that counsel’s reply in writing had not been received within the time-limit set by law led the applicants to presume that the Supreme Court had not taken their observations into account. However, it follows from the letter from the Supreme Court’s registry that this mention in the judgments was an error. The Court observes, moreover, that, according to the information submitted by the Government, the copy of the reply which had been sent by mail was placed in the file and that, on being asked, the Supreme Court had stated that cognisance of the reply had been taken before judgment was given. The Court notes that this was in accordance with the Supreme Court’s practice of taking cognisance of replies even if they have been submitted out of time.

The Court sees no reason to query this course of events which in no way affected the fairness of the proceedings at issue. In so far as the letter from the Supreme Court’s registry left the applicants in doubt as to whether or not that court had taken cognisance of their reply, such doubts must now be considered to have been dispelled. The fact that the judgments of the Supreme Court did not contain any reasoning expressly related to the issues raised in the reply to the advisory opinion cannot alter this finding since, as was also pointed out by the Government, Article 6 § 1 of the Convention does not require courts to give a detailed answer to every argument. Moreover, the right to a fair trial cannot be considered as laying down formal requirements for judgments issued by national courts.

In the light of the foregoing, the Court is satisfied that the criminal proceedings at issue were fair.

It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President

[Note1] To be checked.

[AVS2] 1 Add, if appropriate, the judgment type in roman after the date (e.g. "(article 50)" or "(preliminary objections)").

[AVS3] 1 Add a second "p" if referring to more than one page. Numbers are to be indicated as follows: 1-2, 12-14, 115-16, 1122-24. If citing an opinion of the Commission, add "opinion of the Commission" before the page reference.

[AVS4] 1 Add a second "§" if referring to more than one paragraph.