FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40801/98 by Jacobus F.A.M. DE BRUIJN against the Netherlands

The European Court of Human Rights (First Section) , sitting on 22 May 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 24 February 1998 and registered on 17 April 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 is a Dutch national, born in 1936 and living in Oudewater. He is represented before the Court by Mr G.H.J. Dolk, a lawyer practising in Rotterdam.

A. The circumstances of the case

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

The applicant is director and sole shareholder of the company with limited liability “J.F.A.M. De Bruijn Holding B.V.”, which in turn is the sole shareholder of two other companies; “Arcom B.V.” and “Injection Nederland B.V.”. These three companies form one unit for the purposes of the determination of turnover tax ( omzetbelasting ) and corporation tax ( vennootschapsbelasting ).

In 1988, the Governmental Audit Department ( Rijksaccountantsdienst ) carried out an inspection of the business administration of the above three companies. This inspection was closed after possible fiscal offences had been found. The Fiscal Intelligence and Investigation Department ( Fiscale Inlichtingen - en Opsporingsdienst ; “FIOD”) then started a fiscal criminal investigation. At some unspecified point in time, a declaration of discontinuance of criminal proceedings within the meaning of Article 36 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) was issued, i.e. a statement to the effect that the case had ended without the institution of any further criminal proceedings.

In the fall of 1994, the fiscal authorities - apparently on the basis of information received that Injection Nederland B.V. would pay out overtime in the form of travel allowances - announced a fiscal inspection of the business administration of this and the affiliated companies. Mr S., an official of the fiscal authorities, inspected these administrations at the premises of the companies’ accountancy firm. This inspection took place during some weeks in November and December 1994 as well as on 20, 21 and 22 March 1995. During the inspection of the administration, Mr A. of the companies accountancy firm asked Mr S. on several occasions whether he had found any particularities, which Mr S. denied.

On 30 March 1995, the FIOD entered the premises of Injection Nederland B.V. and the three companies’ accountancy firm, where they searched for and seized the business administration of Injection Nederland B.V.

At some unspecified point in time, the applicant was summoned to appear on 5 October 1995 before the Dordrecht Regional Court ( Arrondissementsrechtbank ) on charges of, inter alia , tax evasion and forgery.

In its judgment of 19 October 1995, following adversarial proceedings, the Regional Court convicted the applicant of tax evasion and forgery and sentenced him to 240 hours of community service. It further imposed a six months’ prison sentence, suspended pending a probation period of two years and payment of a fine in the amount of 200,000 Dutch guilders (NLG). Both the applicant and the prosecution filed an appeal with the Hague Court of Appeal ( Gerechtshof ).

On 19 March 1997, in the presence of the applicant and his lawyer, a hearing was held before the Court of Appeal in the course of which the Court of Appeal heard the applicant and, at the request of the defence, two experts. At having heard the parties’ final pleas, the Court of Appeal closed the trial proceedings and informed the parties that it would pronounce its judgment on 2 April 1997 at 9.30 am.

On 2 April 1997, the Court of Appeal gave judgment in public. The applicant himself was not present at the reading out of the Court of Appeal’s judgment in abridged form, i.e. not containing a statement of the contents of the means of evidence on which it had based the applicant’s conviction.

In its judgment, the Court of Appeal quashed the judgment of 19 October 1995, convicted the applicant of tax evasion and forgery and sentenced him to 240 hours of community service. The Court of Appeal further imposed a six months’ prison sentence, suspended pending a probation period of two years and payment of a fine of NLG 150,000.

The Court of Appeal rejected the argument raised by the defence that the prosecution should be declared inadmissible on the ground that the fiscal authorities had abused their authority (“détournement de pouvoir”) in that the fiscal authorities’ powers of inspection had been exercised for obtaining evidence for use in criminal proceedings thus denying the applicant guarantees under criminal law. According to the text of the abridged judgment, it held on this point:

“It has been argued by the defence that the information obtained from Mr De Bruijn and others was not preceded by a cautioning . However, it has not been established during the trial proceedings that, in the context of the inspection , either a declaration within the meaning of Article 29 of the Code of Criminal Procedure has been made or that Mr De Bruijn and others were summoned to provide information in writing. Therefore it cannot be said that the accused has been denied any guarantees (under criminal law). The short delay, as pointed out by the defence, between the closure of the inspection of the administration and the searches do not lead to another conclusion. With this, and unlike the situation in other cases where a inspection runs simultaneously with a criminal investigation, a clear distinction has been made for the accused of inspection activities and criminal investigation activities entailing the application of coercive measures.”

On 9 April 1997, the prosecution filed an appeal in cassation with the Supreme Court ( Hoge Raad ).

On 25 April 1997, the applicant addressed a letter to the Hague Court of Appeal, which reads:

“On 2 April 1997, your Court of Appeal has pronounced judgment in my case. My lawyer has requested you on the same day to send him a complete version of the judgment ( het uitgewerkte arrest ), because I consider filing an appeal in cassation against the judgment, but this is dependent on the reasons and contents of the judgment.

To date I have not received the complete version of the judgment.

I had wanted to contact my lawyer about this, but he cannot be reached as he is staying abroad and will only be back in his office on Monday. As from that day I myself will be gone for two weeks to the Far East.

As the complete version of the judgment is still not available, I wish to inform you that I am filing an appeal in cassation against the judgment . I herewith refer to the contents of my lawyer’s letter of 2 April 1997 in which he already informed you of my intention to file an appeal in cassation although making this dependent on the reasons and contents.

I reserve myself the right, when I have taken notice of the reasons, to withdraw this appeal in cassation after I have been able to confer further about this with my lawyer upon my return.

May I request you to take good notice of my request and to confirm me at the address given below the institution from my side of an appeal in cassation?”

On 1 May 1997, the applicant was provided with the complete version of the judgment of 2 April 1997. His attention was drawn to the fact that the time-limit for filing an appeal in cassation had expired on 16 April 1997.

The elements that had been added to the abridged version of the judgment of 2 April 1997 were the means of evidence on which the applicant’s conviction was based, i.e. fiscal declarations made by or on behalf of the companies concerned, and statements taken from the applicant, four employees of Injection Nederland B.V., a fiscal investigation officer involved in the investigation at issue, and fiscal officials having processed fiscal declarations made by or on behalf of the companies concerned.

On 14 May 1997, the applicant was notified of the fact that on 9 April 1997 the prosecution had filed an appeal in cassation against the Court of Appeal’s judgment of 2 April 1997

On 26 June 1997, the prosecution withdrew its appeal in cassation.

In its judgment of 6 January 1998, the Supreme Court noted that the applicant’s appeal in cassation had been filed on 1 May 1997 and held that, since the applicant had attended the trial proceedings before the Court of Appeal in person, his appeal in cassation was therefore inadmissible.

B. Relevant domestic law and practice

Pursuant to Article 359 §§ 1 and 3 of the Code of Criminal Procedure ( Wetboek van Strafvordering , hereinafter referred to as “CCP”), a judgment must contain the means of evidence as well as the pertinent facts and circumstances on which a conviction is based.

According to Article 345 § 3 CCP, the court must deliver the judgment within fourteen days following the closure of the trial proceedings, but it may confine itself to pronouncing judgment in abridged form, i.e. not containing the means of evidence and the pertinent facts and circumstances on which a conviction is based.

According to Article 365a CCP, a complete version of the judgment has to be prepared where the convicted person or the public prosecutor lodges an appeal against the judgment. In that case the text of the means of evidence and the pertinent facts and circumstances must be included in the judgment within three months when the person concerned is detained in connection with the facts in issue or, if that is not the case, within four months. The case-file, including the complete judgment, must subsequently be transmitted to the appeal court.

According to Article 365 § 1 CCP, a judgment must be signed within 48 hours after its delivery by the judges who have examined the case. A judgment in abridged form is signed in that form and, as soon as this has happened, the accused or his counsel are able, according to Article 365 § 3 CCP, to inspect it as well as the official records of the trial hearings.

A complete version of the judgment may also be made available upon request of the accused or his lawyer within three months after delivery of the judgment, unless this request is devoid of reasonable interest (Article 365c §§ 1 and 2 CCP).

Under Article 427 CCP, both an accused and the prosecution may file an appeal in cassation against a judgment of a Court of Appeal. Such an appeal is limited to procedural conformity and points of law.

Pursuant to Article 432 § 1 CCP, an appeal in cassation must be filed within fourteen days after the delivery of the final decision by a trial court where the trial proceedings have been conducted in the presence of the accused.

If only the prosecution has filed an appeal in cassation, the accused must be notified of this fact (Article 433 § 1 CCP). An accused may file a subsidiary appeal in cassation ( incidenteel beroep in cassatie ) within fourteen days after receipt of this notification (Article 433 § 2 CCP). Such a subsidiary appeal is limited to the scope of the principal appeal, i.e. the appeal lodged by the prosecution. In case the principal appeal is declared inadmissible or when it is withdrawn, the subsidiary appeal will not be examined.

Upon receipt of the case-file at the Registry of the Supreme Court, the Registrar of the Supreme Court shall notify the appellant in cassation and the adversary party accordingly (Article 435 § 1 CCP). According to Article 437 § 2 CCP, an accused who has filed an appeal in cassation must submit his complaints in cassation ( cassatiemiddelen ) within a delay of two months after the serving of the notification referred to in Article 435 § 1 CCP.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he did not have available a copy of the complete written judgment of the Court of Appeal at the time when he had to decide whether or not to file an appeal in cassation.

The applicant further complains under Article 6 of the Convention that in violation of the right to a fair trial the prosecution withdrew its appeal in cassation thus frustrating the applicant’s right to file a subsidiary appeal in cassation.

The applicant finally complains under Article 6 §§ 1, 2 and 3 (a) of the Convention that the Court of Appeal rejected his argument that the inspecting fiscal official has abused his authority by not informing the applicant that fiscal offences were being suspected thus inducing the applicant to co-operate to his own conviction by providing this official with incriminating information.

THE LAW

Relying on Article 6 of the Convention, the applicant complains that he did not have available a copy of the complete written judgment of the Court of Appeal at the time when he had to decide whether or not to file an appeal in cassation, that the prosecution withdrew its appeal in cassation and thus frustrated the applicant’s right to file a subsidiary appeal in cassation, and that the Court of Appeal unjustly rejected his argument that incriminating information had been obtained without a prior warning that such information could be used in evidence in criminal proceedings.

Article 6 of the Convention, insofar as relevant, reads:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal ... Judgment shall be pronounced publicly ...

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:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence; ...”

As the guarantees in the second and third paragraphs of Article 6 of the Convention represent constituent elements of the general concept of a fair trial set forth in Article 6 § 1, the Court will examine the applicant’s complaints under Article 6 §§ 1, 2 and 3 taken together (cf. Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, p. 31, § 62).

The Court notes that in the present case the judgment in abridged form was handed down publicly on 2 April 1997 and that both the applicant and his lawyer had been informed at the closure of the trial proceedings on 19 March 1997 of the date and time when this would take place.

The Court further notes that on 2 April 1997 the applicant’s lawyer had apparently been provided with a copy of the abridged judgment, since - in his letter of 2 April 1997 - the applicant’s lawyer requested the Court of Appeal to be provided with a completed version of the judgment, thus implying that he had already been provided with the text of the judgment in abridged form.

Under Dutch law both the applicant and the prosecution could file an appeal in cassation within the statutory fourteen-day time-limit without being obliged, at that point in time, to state the nature of their complaints in cassation. In this respect the Court observes that, under domestic law, an appellant in cassation is only required to complete an appeal in cassation by submitting complaints in cassation within two months after having been formally notified that the trial court’s case-file, including a complete version of the judgment appealed, has been received at the Supreme Court.

In these circumstances, the Court cannot find that the availability of a complete version of the judgment of 2 April 1997 was strictly indispensable for the applicant’s decision whether or not to file an appeal in cassation and therefore cannot find that the applicant’s defence rights guaranteed by Article 6 of the Convention were unduly affected by the absence of a complete version of the judgment of the Court of Appeal.

As to the applicant’s complaint of the withdrawal of the prosecution’s appeal in cassation, the Court notes that the applicant could have filed an independent appeal in cassation before the expiry of the statutory time-limit on 16 April 1997. However, only the prosecution filed such an appeal. The fact that the applicant failed to do so and the consequences thereof cannot be imputed to the respondent State.

The Court, therefore, cannot find that the applicant’s defence rights guaranteed by Article 6 of the Convention were unduly affected by the absence of a complete version of the judgment of the Court of Appeal or by the consequences of the fact that only the prosecution filed an appeal in cassation (cf. Zoon v. the Netherlands , no. 29202/95, 7.12.2000).

It follows that this part of the application must be rejected under Article 35 § 3 of the Convention for being manifestly ill-founded.

As regards the applicant’s complaint that the Court of Appeal unjustly rejected his argument that incriminating information had been obtained without a prior warning that such information could be used in evidence in criminal proceedings, the Court notes that it has not been argued and that it has not appeared that the applicant would have been unable to challenge this finding in cassation proceedings before the Supreme Court. Moreover, the Court notes in this respect that the reasons for rejecting this argument were in fact set out in the judgment in abridged form that was handed down by the Court of Appeal on 2 April 1997.

As the applicant has failed to file a timely appeal in cassation, he has not exhausted domestic remedies on this point as required by Article 35 § 1 of the Convention (cf. Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66).

It follows that this part of the application must be rejected, in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm Registrar President