SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights (Second Section) , sitting on 1 October 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr G aukur 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 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 deliberated, decides as follows:

THE FACTS

The applicant, Mr Dingenis C. Wouterse, is a Dutch national, who was born in 1937 and lives in ‘s Gravenpolder. The applicant companies, Marpa Zeeland B.V. and Metal Welding Service B.V., are both limited liability companies with legal personality under Dutch law ( besloten vennootschap ) which have their registered office in Kwadendamme. The companies’ managing director is another limited liability company, Holding Wouterse Kwadendamme B.V. The applicant is this latter company’s managing director and sole shareholder, and he represents the two applicant companies before the Court.

A. The circumstances of the case

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

Criminal investigations and subsequently prosecutions were instigated against both the applicant himself and the two applicant companies on suspicion of forgery ( valsheid in geschrifte ) and tax fraud at some stage in 1989. On 28 October 1990 the Fiscal Intelligence and Information Service ( Fiscale Inlichtingen en Opsporingsdienst , “FIOD”) searched the premises of the applicant companies and on 29 October 1990 the applicant was interviewed for the first time as a suspect. The preliminary judicial inquiry ( gerechtelijk vooronderzoek ) was closed on 9 February 1993.

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

Both the applicant and the applicant companies lodged appeals with the Court of Appeal ( gerechtshof ) of The Hague, as did 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 Procurator General ( procureur-generaal ) to the Court of Appeal initiated negotiations with counsel for the applicant and the applicant companies aimed at the withdrawal of the appeals. It was felt that the continuation of the criminal proceedings would serve no useful purpose in view of the financial situation of the applicant companies and the financial and psychological/social situation of the applicant. A report of 30 November 1995, drawn up by a psychiatrist at the request of the Court of Appeal, describes how the applicant had set up his own temporary employment agency in 1984 after losing his job as a welder. This business was very successful, but the applicant lacked the necessary knowledge to adapt administrative practices to the increased size of the organisation. The psychiatrist concluded that the applicant had been suffering from depression since 1987 or 1988 and at the time of the commission of the offences with which he was charged his responsibility was diminished. The long duration of the proceedings had exacerbated the applicant’s already difficult situation. He had suffered major financial losses as a result of the arbitrary imposition of tax assessments. The psychiatrist advised the Court of Appeal not to impose a prison sentence on the applicant but to prescribe a period of community service.

Just before the hearing on 4 December 1995 was about to start, the applicant and the Procurator General reached an agreement. In a letter to the applicant, also of 4 December 1995, counsel confirmed this agreement according to which the appeals would be withdrawn and requests submitted for a remission of the sentences ( gratie ) imposed by the Regional Court of Middelburg. The sentence imposed on the applicant 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’ community service. The fines imposed on the applicant companies were to be reduced depending on the outcome of fiscal proceedings pending against these companies.

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

Both the Procurator General and the applicant withdrew the appeals in the proceedings against the applicant and those against the applicant companies. In its judgments of 4 December 1995, the Court of Appeal noted that the appeals had been withdrawn.

Requests for remission of sentence were lodged on 21 December 1995. The Procurator General and the Court of Appeal issued an additional recommendation to the Minister of Justice ( Minister van Justitie ), on 22 October and 5 November 1996 respectively, to the effect that the requests lodged on behalf of the applicant companies should be rejected and the request made in respect of the sentence imposed on the applicant granted.

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 and the applicant companies wrote to the Procurator General, informing him that he could not square these rejections with the undertakings given by the Procurator General. In reply, the Procurator 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 the public prosecutor at the Regional Court of Middelburg informed the applicant that he would now proceed with the execution of the sentences imposed on the applicant companies by that court. That same day, the applicant again lodged an appeal with the Court of Appeal of The Hague against the three judgments of the Regional Court of 3 February 1994.

At a hearing before the Court of Appeal on 2 June 1997, the Procurator 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 the applicant that he, the applicant, 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 the applicant had been legally represented, he could have obtained information from his counsel. The Procurator 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 these companies had gone bankrupt and offered no means of redress.

In reply, the applicant 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 Procurator General had led him to believe that the requests would be granted. In addition, the two applicant companies were not bankrupt and continued to exist.

At a subsequent hearing on 8 August 1997, the Procurator General informed the Court of Appeal that on 19 July 1997 the request for remission of sentence in the case against the applicant had been granted. Neither the applicant nor his counsel had previously been informed of this decision. The applicant 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 Procurator General on the one hand and counsel and Wouterse – in his capacity both of accused in the criminal proceedings against himself and of representative in the criminal proceedings against the companies – on the other, took place at the initiative of the Procurator General. According to the Procurator 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 Procurator 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 Procurator 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 Procurator General and in accordance with his advice.

The solution favoured by the Procurator 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 Procurator 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 Procurator 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 Procurator 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 irrevocable ( 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

Pursuant to Article 122 § 1 of the Dutch Constitution ( Grondwet ), remission of sentence may be granted by royal decree ( Koninklijk besluit ), that is a decree signed by the Monarch and the Minister responsible. Since such a decree can only be adopted on the initiative and under the (political) responsibility of a Minister, it is effectively the Minister of Justice who has the power to decide on requests for remission.

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 irrevocable (Article 558 of the Code of Criminal Procedure). Before a decision is taken, the public prosecution service charged with the execution of the sentence, as well as the court which imposed the sentence, are consulted (Articles 3 and 5 of the Pardons Act [ Gratiewet ]). Additional information may also be obtained (Article 12 of the Pardons Act).

COMPLAINTS

The applicant complains , firstly, of the actions of the Procurator General to the Court of Appeal of The Hague who persuaded him to withdraw the appeals and convinced him that the requests for a remission of sentence would succeed. Secondly, he complains that he was unable to reinstate the appeals. He invokes Articles 3, 5 § 3, 6 and former Article 50 (now replaced by Article 41) of the Convention, as well as Article 3 of Protocol No. 7.

THE LAW

A. The criminal proceedings against the applicant

The Court notes that the request for remission of the sentence imposed on the applicant was granted with the result that the term of two years’ imprisonment imposed by the Regional Court of Middelburg was converted into a six months’ suspended sentence and a number of hours of community service. In so far as the complaints relating to the criminal proceedings against the applicant are concerned, therefore, the applicant can no longer claim to be victim of a violation of his rights under the Convention or its Protocols as required by Article 34 of the Convention.

It follows that this part of the application is manifestly ill-founded, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4 of the Convention.

B. The criminal proceedings against the applicant companies

1. Article 3 of the Convention

The applicant, as the person directly responsible for the running of the applicant companies, complains that he felt threatened and humiliated as a result of the actions of the Inland Revenue and the public prosecution service directed against the applicant companies. He invokes Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court reiterates that a treatment has to reach a certain level of severity before it can be considered to be contrary to Article 3 of the Convention. The assessment of this level depends on all circumstances of the case (see the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 31, § 83). The Court finds that the facts of the present case do not demonstrate that this level was attained.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Article 5 § 3 of the Convention

The applicant companies complain of a breach of their right to be tried within a reasonable time. They invoke Article 5 § 3 of the Convention.

The Court notes that Article 5 § 3 provides for the entitlement to trial within a reasonable time for persons who have been arrested or detained. Such not being the case here, this complaint falls to be examined under Article 6 § 1 of the Convention.

3. Article 6 § 1 of the Convention

Apart from the length of the proceedings (see above under 2.), the applicant companies also complain of the unfairness of the proceedings in view of the fact that the applicant was made to withdraw the applicant companies’ appeals on improper grounds and was subsequently unable to reinstate them.

Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. Former Article 50 of the Convention

The applicant companies submit that the Supreme Court, in its judgment of 22 September 1998, failed to examine the undertakings given by the Procurator General to the Court of Appeal of The Hague.

The Court observes that former Article 50, like current Article 41 by which it was replaced, provided for the possibility that the Court make an award of just satisfaction in cases where there has been a violation of the Convention. As such, it does not contain any right or guarantee which individual applicants may invoke to challenge legal decisions taken in the context of domestic proceedings.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

5. Article 3 of Protocol No. 7

The applicant, as the person directly responsible for the running of the applicant companies, and the applicant companies complain that they were not awarded any compensation despite the fact that they were the victims of a miscarriage of justice.

The Court notes that Protocol No. 7 to the Convention has not been ratified by the Netherlands. This part of the application is therefore also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant companies’ complaints concerning the fairness and length of the criminal proceedings against them;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President