FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34549/97 by Mathijs H. MEULENDIJKS and Antonius W.M. MEULENDIJKS against the Netherlands

The European Court of Human Rights ( First Section ), sitting on 14 March 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mrs W. Thomassen, 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 9 January 1997 and registered on 17 January 1997,

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 Commission's partial decision of 1 July 1998,

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 applicants are Netherlands national s , born in 1920 and 1957 respectively, and living in Heeze ( Netherlands ).

They are represented before the Court by Mr J.C.B.C. Geerts , a lawyer practising in Rosmalen (the Netherlands ).

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

a. The criminal investigation and proceedings

On 7 December 1988, a preliminary judicial investigation ( gerechtelijk vooronderzoek ) was opened against the applicants' company on suspicion of forgery committed for fiscal purposes. On 13 December 1988, in the context of this investigation, the applicants' business premises were searched and a major part of the office records was seized by the investigating authorities.

By letters of 16 and 23 December 1988, the applicants' lawyer unsuccessfully requested the public prosecutor to return the items seized on 13 December 1988 in order to allow the company to continue its business activities.

At some unspecified point in time, the applicants' lawyer was informed by the investigating judge ( rechter-commissaris ) that the seized office records would be returned after the final examination ( slotverhoor ). This final examination took place on 28 February 1991.

On 19 March 1991, the applicants' firm, as a separate legal person, received a formal notification that no further criminal proceedings would be brought against it ( kennisgeving van niet verdere vervolging ).

Since the seized office records had still not been returned, the applicants' lawyer informed the investigating judge by letters of 25 March and 8 April 1991 that, if the office records would not be returned before a certain date, a formal complaint ( beklag ) about the continuation of the seizure would be filed with the Regional Court . At some later point in time part of the seized office records was returned. The return of the remaining part was refused.

At some unspecified point in time, the first applicant was summoned to appear on 23 May 1991 before the Regional Court ( Arrondissementsrechtbank ) of 's-Hertogenbosch on charges under Article 225 of the Criminal Code ( Wetboek van Strafrecht ) and Article 68 of the General State Taxation Act ( Algemene Wet inzake Rijksbelastingen ). Criminal proceedings were also brought against the second applicant.

In the subsequent criminal proceedings against the first applicant, the Court of Appeal ( Gerechtshof ) of 's-Hertogenbosch, in its judgment of 27 April 1994, declared the prosecution inadmissible for non-compliance with the reasonable time requirement under Article 6 § 1 of the Convention. The criminal proceedings brought against the second applicant ended with the decision of the Court of Appeal of 27 April 1994 in which the summons against the second applicant was declared null and void also on grounds of failure to respect the reasonable time requirement.

b. The proceedings on social security contributions

By letters of 7 July 1989 and 28 March 1990, the applicants objected to correction demands ( correctienota's ) over the years 1985-1988 for social security contributions which had been sent by the Occupational Association for the Timber and Furniture Industry and Timber Wholesale Trade ( Bedrijfsvereniging voor de Hout - en Meubelindustrie en Groothandel in Hout , hereinafter referred to as "the Occupational Association"). The applicants denied having paid undeclared wages or having been involved in excessive reimbursement of expenses. In these letters, the applicants requested the Occupational Association to give a formal confirmation ( voor beroep vatbare beschikking ) of these correction demands.

On 7 March 1990, the Occupational Association requested the applicants to substantiate their objections to the demands. After having requested a delay, the applicants replied to this request on 30 August 1990 and further offered a compromise solution. On 31 October 1990, after part of the seized office records had been returned to them, the applicants submitted additional reasons for their objections to the demands to the Occupational Association.

On 7 November 1990, an administrator of the Occupational Association drafted an internal report and, on 20 June 1991 the so-called "Small Commission" ( Kleine Commissie ) of the Occupational Association approved the internal advice.

On 3 July 1991, the Occupational Association issued the formal confirmation with the reasons for its decision. According to this decision, the applicants had to pay 288,224.28 Dutch guilders for social security contributions on grounds of excessive reimbursement of expenses which were considered as wages by the Occupational Association and payment of undeclared wages.

The applicants filed an appeal against this decision with the Regional Court of 's ‑ Hertogenbosch on 29 July 1991 and further substantiated their grounds for appeal on 27 August 1991. On 10 January 1992, the Occupational Association replied in writing to the applicants' submissions on appeal. The applicants responded in writing on 29 June 1992 and the Occupation Association's further written reaction was submitted on 18 February 1993.

Following a hearing held on 6 April 1993, the Regional Court rejected this appeal by judgment of 17 May 1993. The applicants filed a further appeal with the Central Appeals Tribunal ( Centrale Raad van Beroep ).

On 18 June 1993, the applicants submitted their grounds on appeal to the Central Appeals Tribunal, to which the Occupational Association replied on 24 December 1993. On 6 January 1995, the applicants made further submissions to the Central Appeals Tribunal to which the Occupational Association replied on 20 January, 12 October and 7 November 1995. The applicants submitted further information on 10 May 1996.

Following a hearing held on 30 May 1996 in the course of which three witnesses and an expert were heard upon the applicants' request, the Central Appeals Tribunal, in its judgment of 11 July 1996, quashed both the decision of 3 July 1991 and the judgment of 17 May 1993.

Insofar as the applicants had complained of the delay between their request for and the issuance of the formal confirmation by the Occupational Association, the Court of Appeal - in the light of the European Court's findings in its Schouten and Meldrum v. the Netherlands judgment of 9 December 1994 - noted that, following the applicants' request of 7 July 1989, the Occupational Association had requested the applicants on 7 March 1990 to substantiate their objections and that, after having requested a delay, the applicants replied to this request on 30 August 1990 and further offered a compromise solution. The Central Appeals Tribunal further noted that on 31 October 1990 the applicants sent additional reasons for their objections, that an internal report was drafted on 7 November 1990 which was submitted to the Small Commission of the Occupational Association and that the formal confirmation was issued on 3 July 1991.

Noting the complexity of the case and the contents of the applicants' submissions, the Central Appeals Tribunal held that, although the decision process took place with little diligence, the Occupational Association had not acted so slowly that it should be found that Article 6 of the Convention had been violated.

COMPLAINTS

The applicants complain under Article 6 of the Convention that there has been an unreasonable delay between their request for formal confirmation of the decision of the Occupational Association and the actual issuance of this confirmation.

The applicants further complain under Article 6 of the Convention that the length of the subsequent proceedings before the Regional Court and the Central Appeals Tribunal exceeded a reasonable time.

The applicants finally complain under Article 6 of the Convention that, in the proceedings on the correction demands, the principle of equality of arms has been violated in that during these proceedings, despite their repeated requests to this effect, they had no full access to their seized office records which contained relevant information for the proceedings on the correction demands.

PROCEDURE

The application was introduced on 9 January 1997 and registered on 17 January 1997.

On 1 July 1998 the European Commission of Human Rights decided to communicate the applicants ' complaints concerning the delay by the Occupational Association in issuing formal confirmation and the length of the subsequent judicial proceedings to the respondent Government and to declare the remainder of the application inadmissible.

The Government's written observations were submitted on 9 October 1998. The applicants informed the Court on 9 December 1998 that they did not wish to submit any observations in reply.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant s' first complaint relates to the length of time which was allowed to pass before the Occupational Association gave formal confirmation of its decision. This period began on 7 July 1989, when formal confirmation was first requested, and ended on 3 July 1991 when it was eventually given. This period therefore lasted almost two years.

The second complaint relates to the length of the subsequent judicial proceedings. These began on 29 July 1991, when the applicants lodged an appeal with the Regional Court of 's-Hertogenbosch, and ended on 11 July 1996 when the Central Appeals Tribunal gave judgment. They therefore lasted nearly five years.

The total length of time involved amounts to seven years and four days. This is not in dispute.

According to the applicant s , the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Government submit that the applicants' first complaint is manifestly ill-founded. They argue that when asked to substantiate their objections to the decisions of the Occupational Association, the applicants allowed considerable time to pass before doing so.

The Government further submit that the applicants' second complaint should be declared inadmissible for failure to exhaust domestic remedies. They argue that the applicants have not complained to the tribunals concerned of the length of time taken by their proceedings. As to the merits of this complaint, the Government point to the complexity of the case.

The Government, to whom it falls to prove the existence and effectiveness of “domestic remedies” which applicants must exhaust, have not demonstrated to the Court's satisfaction that it would have availed the applicants to seek to speed up the judicial proceedings.

The Court further considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant s' conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O'Boyle Elisabeth Palm Registrar President

FIRST SECTION

[PARTIAL] [FINAL] DECISION

[AS TO THE ADMISSIBILITY OF]

Application no. 34549/97

by Mathijs H. MEULENDIJKS and Antonius W.M. MEULENDIJKS

against the Netherlands

The European Court of Human Rights ( First Section ) sitting on [Click as a Chamber composed of

[Click

with Mr M. O’Boyle, Section Registrar ;

Having regard to the application introduced on 9 January 1997 by Mathijs H. Meulendijks And Antonius W.M. Meulendijks against the Netherlands and registered on 17 January 1997;

Having deliberated, decides as follows: