FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39327/98

by Peter BAKKER

against the Netherlands

The European Court of Human Rights ( First Section) sitting on 23 March 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall,

Mr L. Ferrari Bravo,

Mr R. Türmen,

Mr C. Bîrsan,

Mrs W. Thomassen,

Mr R. Maruste, Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 October 1997 by Peter Bakker  against the Netherlands and registered on 13 January 1998 under file no. 39327/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1948, and resident in Enkhuizen. He is represented before the Court by Ms Y.E.J. Geradts, a lawyer practising in Amsterdam.

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

a. Particular circumstances of the present case

The applicant had, until mid 1991, a shop in Amsterdam where he sold telecommunication equipment. In 1989 and 1990, he traded in illegal cordless telephones, i.e. cordless telephones which were not allowed to be used in the Netherlands and other Member States of the European Union given the frequencies used by these telephones.

The telephones were sold by a Belgian Company M.D.B. to a Dutch company C.C. The latter company’s director, B.B., made invoices in respect of these telephones to a fictitious person at a fictitious address in the Netherlands Antilles. In fact the telephones were not shipped to the Antilles but were directly delivered by M.D.B. to the applicant, who subsequently sold them. After a certain time, the telephones were no longer sold via C.C., but through the C.T.C. company of which B.B. was also director.

On 28 August 1990, the Fiscal Intelligence and Investigation Department ( Fiscale Inlichtingen en Opsporingsdienst ; "FIOD") conducted a search at the C.C. company and, on the same day, went to the applicant’s shop for an inspection of the shop’s business administration. The applicant was absent that day and could not be reached. With the consent of the shop’s bookkeeper, the FIOD took away documentation concerning part of the shop’s business administration for verification purposes.

On 12 June 1991, pursuant to Article 81 of the General Act on State Taxes ( Algemene Wet inzake Rijksbelastingen ) which authorises seizure of items for the purpose of investigation of fiscal criminal offences, the FIOD seized the entire business records of the applicant’s shop for the years 1987, 1988, 1989 and 1990. On 16 September 1991, on his own initiative, the applicant went to the FIOD in order to give a statement about his involvement in the cordless telephone trade. On the same day, he was taken into custody ( inverzekeringstelling ) and was subsequently held for questioning for the next three days. He was released on 19 September 1991. In the course of this investigation the applicant was questioned for the last time on 28 January 1992.

On 10 January 1994 the prosecution authorities issued a summons, ordering the applicant to appear on 2 February 1994 before the Regional Court ( Arrondissementsrechtbank ) of Alkmaar on the charges of, inter alia , forgery, committed either alone or in association with others in respect of three invoices for telephones or, alternatively, to have been an accessory to the commission of forgery in respect of these invoices. Further charges of forgery were brought against the applicant in relation to the importation by the C.C. company for B.B. of a boat the latter had bought in Spain and the exportation of a boat by B.B. to Spain.

Insofar as relevant, the charges contained in the summons read as follows:

"that he, the suspect, at various points in time in or about the period between 1 January 1989 and 10 May 1990 in the Municipality of Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise to a disadvantage,

the cited false making or falsifying of this/these invoice(s) consisting in that he, the suspect, together and in association with his fellow perpetrators, at least alone, falsely and/or contrary to the truth

1. has made or had made an invoice numbered 890120, dated 04-08-89 and addressed to Tony Bosch in Aruba, concerning (the delivery of) 1020 telephones (file Case 1, see 1/D/143),

and/or

2. has made or had made an invoice numbered 890215, dated 30-11-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1098 telephones (file Case 1, see 1/D/146),

and/or

3. has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135);

Alternatively, in case the above under 1. would not or could not lead to a conviction:

Trading company C.C. B.V., at various points in time in or about the period between 1 January 1989 and 10 May 1990 in Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise (each time) to a disadvantage,

the cited false making or falsifying of this/these invoice(s) consisting in that above cited company together and in association with its fellow perpetrators, at least alone, falsely and/or contrary to the truth

1. has made or had made an invoice numbered 890120, dated 04-08-89 and addressed to Tony Bosch in Aruba, concerning (the delivery of) 1020 telephones (file Case 1, see 1/D/143),

and/or

2. has made or had made an invoice numbered 890215, dated 30-11-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1098 telephones (file Case 1, see 1/D/146),

and/or

3. has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135),

to which and/or the commission of which offences he, the suspect, in or about the period between the month January 1989 and the month May 1990, in the Municipality of Hoorn, in any case in the Netherlands, has intentionally provided the opportunity, means and/or information and/or has intentionally provided assistance by dictating, or providing, the information contained in the above cited invoice(s) to the cited company, or to one or more of its staff members; ... ."

By judgment of 13 April 1994, following adversarial proceedings, the Regional Court convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to twelve months’ imprisonment, suspended pending a probation period of two years, and payment of a fine of NLG. 200,000 from which fine NLG. 50 was to be deducted for each day the applicant had spent in pre-trial detention. The applicant filed an appeal with the Court of Appeal ( Gerechtshof ) of Amsterdam.

In its judgment of 15 March 1996, following adversarial proceedings, the Court of Appeal quashed the judgment of 13 April 1994, convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to six months’ imprisonment, with deduction of the time spent in pre-trial detention, suspended pending a probation period of two years, and payment of a fine of NLG. 50,000.

The Court of Appeal rejected the applicant’s argument that the summons should be declared null and void in that the charges brought against him, as stated in the summons, were phrased in terms so vague that was not clear what exactly the prosecution considered the applicant had in fact done in relation to the facts at issue. The Court of Appeal held that the summons was in conformity with the relevant requirements under Article 261 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) and that, given the text and structure of the charges, there could be no misunderstanding that it concerned the commission of forgery in different factual forms. It further found that the summons were sufficiently clear for the applicant to understand what was held against him and against what he should defend himself. Moreover, during the applicant’s trial, it had not appeared that there existed any misunderstanding on the part of the applicant as to what was held against him.

As to the applicant’s argument that the prosecution should be declared inadmissible for failure to respect the reasonable time requirement under Article 6 § 1 of the Convention, the Court of Appeal held that the proceedings at issue had started on 16 September 1991 when the applicant was arrested and detained on remand. It agreed that the applicant’s case had not been dealt with within a reasonable time within the meaning of Article 6 § 1 of the convention. After having weighed the applicant’s interest in obtaining a determination of his case within a reasonable time against the interest of the prosecution, the court decided that it would accept the applicant’s prosecution but that it would take this finding into consideration in the determination of the applicant’s sentence.

In the determination of the applicant’s sentence, the Court of Appeal considered that the applicant’s actions had deprived the community of an estimated amount of NLG. 900,000 in taxes, this in a large part to the applicant’s personal benefit, and that a prison sentence of six months and payment of a fine of NLG. 150,000 would be an appropriate sentence. However, on the basis of the finding that the proceedings against the applicant had exceeded a reasonable time, the Court of Appeal decided to mitigate the prison sentence by rendering it conditional and to mitigate the fine by reducing it to NLG. 50.000.

The applicant’s subsequent appeal in cassation was rejected by the Supreme Court ( Hoge Raad ) on 15 April 1997. The applicant’s complaints about the rejection by the Court of Appeal of his arguments in relation to the manner in which the charges against him had been phrased and the length of the proceedings were rejected by the Supreme Court under Article 101a of the Judicial Organisation Act ( Wet op de Rechterlijke Organisatie ) as not prompting a determination of legal issues in the interests of legal unity and legal development.

b. Relevant domestic law

Article 261 of the Code of Criminal Procedure, insofar as relevant, reads as follows:

“1. On penalty of nullity, the summons shall contain a description of the fact [with which the defendant is] charged, including the approximate time and location where it has allegedly been committed.

2. The summons shall further set out the circumstances under which the fact has allegedly been committed.

3. ... “.

Article 225 of the Netherlands Criminal Code, as in force at the relevant time, provides as follows

“1. Any person who counterfeits or falsifies a document from which any right or obligation may arise or which may result in any discharge of a debt, or which is to be used as evidence of any fact, such with the aim of using it or enabling others to use it as if it were genuine and unfalsified, shall, if any damage could arise from such use, be guilty of forgery and liable to a term of imprisonment not exceeding six years and a fifth ‑ category fine or either one of these penalties.

2. Any person who intentionally uses such a forged or falsified document as if it were genuine and unfalsified, shall, if any damage could arise from such use, be liable to the same penalty.”

COMPLAINTS

1. The applicant complains under Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention that he did not receive a fair trial in the criminal proceedings against him in that the charges were phrased in such a vague manner that it was not clear to him which precise facts committed by him in person were in fact held against him. The applicant submits that the charges brought against him included every feasible punishable act in relation to the invoices at issue, but that the charges did not contain a description of any act or the time and place of this act allegedly performed by him in person.

2. The applicant further complains under Article 6 § 1 of the Convention that the criminal charges against him have not been determined within a reasonable time. The applicant submits that the Court of Appeal unjustly held that the proceedings against him had started on 16 September 1991, when he was taken into custody. According to the applicant, the proceedings against him must be considered as having started on 28 August 1990 when the FIOD seized part of the business records of the applicant’s shop. Consequently, the redress offered by the Court of Appeal for the violation of the reasonable time requirement cannot, in the applicant’s opinion, be regarded as sufficient.

THE LAW

1. The applicant complains under Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention that he did not receive a fair trial in the criminal proceedings against him in that the charges were phrased in such a vague manner that it was not clear to him which precise facts allegedly committed by him in person were being held against him.

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

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;

c. to defend himself in person or through legal assistance of his own choosing ... ."

As the requirements of paragraph 3 of Article 6 of the Convention are specific aspects of the general right to a fair trial set forth in paragraph 1 of this provision, the Court will examine this part of the application under both paragraphs taken together (cf. Eur. Court HR, Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, p. 711, § 49).

The Court considers that an accused person has the right to be informed not only of the grounds for the accusation, that is, not only of the acts with which he is charged and on which the indictment is based, but also of the nature of the accusation, namely the legal classification of the acts in question. In addition, because of the logical link between sub-paragraphs 3 (a), (b) and (c) of Article 6, the information about the nature and cause of the accusation must be adequate to enable the accused to prepare his defence accordingly (cf. Eur. Comm. HR, Nos. 24571/94 and 24572/94, Dec. 28.6.95, D.R. 82, p. 85).

The Court notes that the summons issued on 10 January 1994 sets out both the acts with which the applicant was charged and their legal qualification. The Court cannot find that the summons at issue lacked clarity or precision or was otherwise inadequate for the preparation of the applicant’s defence. It is therefore of the opinion that, for the purposes of Article 6 of the Convention, the applicant was duly informed of the nature and cause of the accusation against him.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complains under Article 6 § 1 of the Convention that the criminal charges against him have not been determined within a reasonable time. The applicant complains in particular that the Court of Appeal unjustly held that the proceedings against him had started on 16 September 1991 instead of 28 August 1990.

The Court notes that the Court of Appeal acknowledged that the proceedings against the applicant had lasted for an unreasonable length of time, but did not consider that this should lead to the inadmissibility of the prosecution. On the basis of the duration of the proceedings it did, however, mitigate the applicant’s sentence. Instead of the unconditional prison sentence of six months and payment of a fine of NLG. 150,000 which it considered would have been appropriate in normal circumstances, the Court of Appeal limited the applicant’s sentence to six months’ imprisonment with a deduction of the time spent in pre-trial detention, suspended pending a probation period of two years, and further limited the fine imposed on the applicant to NLG. 50,000.

Even assuming that the proceedings at issue may be deemed to have started on 28 August 1990 rather than on 16 September 1991, the Court is satisfied, given the decision of the Court of Appeal considerably mitigating the applicant’s sentence, that the reduction of the applicant’s sentence constitutes adequate redress for the unreasonably long duration of the proceedings.

The Court further considers that the subsequent proceedings before the Supreme Court, which lasted thirteen months, cannot be considered as having exceeded the reasonable time requirement of Article 6 § 1 of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Michael O’Boyle Elisabeth Palm

Section Registrar Section President