CEDH · CASELAW;REPORTS;ENG — 9 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            EUROPEAN COMMISSION OF HUMAN RIGHTS                                 SECOND CHAMBER                            Application No. 21961/93                                      W.H.                                     against                                 the Netherlands                            REPORT OF THE COMMISSION                            (adopted on 9 April 1997)                                TABLE OF CONTENTS                                                                         Page   I.     INTRODUCTION       (paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1   II.    ESTABLISHMENT OF THE FACTS       (paras. 6-23) . . . . . . . . . . . . . . . . . . . . . . . . . . .2   III.   OPINION OF THE COMMISSION       (paras. 24-46). . . . . . . . . . . . . . . . . . . . . . . . . . .6         A.     Complaint declared admissible             (para. 24). . . . . . . . . . . . . . . . . . . . . . . . . .6         B.     Point at issue             (para. 25). . . . . . . . . . . . . . . . . . . . . . . . . .6         C.     As regards Article 6 para. 1 of the Convention             (paras. 26-45). . . . . . . . . . . . . . . . . . . . . . . .6               CONCLUSION             (para. 46). . . . . . . . . . . . . . . . . . . . . . . . . .9   APPENDIX:    DECISION OF THE COMMISSION AS TO THE             ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . . . 10   I.     INTRODUCTION   1.     The present Report concerns Application No. 21961/93 introduced on 26 May 1993 against the Netherlands and registered on 2 June 1993.         The applicant is a Dutch national born in 1943 and resident in Belgium.         The applicant is represented before the Commission by Mr. P.J. Baauw, a lawyer practising in Utrecht, the Netherlands.         The Government of the Netherlands are represented by their Agent, Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.   2.     The application was communicated to the Government on 2 September 1994.   Following an exchange of written observations, the application relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 28 February 1996.   The decision on admissibility is appended to this Report.   The parties have submitted observations on the merits of the case, the Government on 23 April 1996 and the applicant on 24 June 1996.   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (Second Chamber), after deliberating, adopted this Report on 9 April 1997 in accordance with Article 31 para. 1 of the Convention, the following members being present:               Mrs.   G.H. THUNE, President             MM.    J.-C. GEUS                   G. JÖRUNDSSON                   A. GÖZÜBÜYÜK                   J.-C. SOYER                   H. DANELIUS                   F. MARTINEZ                   M.A. NOWICKI                   I. CABRAL BARRETO                   J. MUCHA                   D. SVÁBY                   P. LORENZEN                   E. BIELIUNAS                   E.A. ALKEMA   4.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Netherlands.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   6.     In the late 1970's and early 1980's, the applicant was the director of, inter alia, the cleaning agencies S. and S.N., both companies with limited liability. In September 1980, the Dutch tax authorities inspected the accounts of another cleaning company, W.N. This inspection showed that the latter company was a subcontractor of the S. and S.N. companies. Between 1981 and 1984 the tax authorities inspected the accounts of the S. and S.N. companies and all their subcontractors.   7.     On 31 December 1981, the tax inspector issued the first of a number of supplementary tax assessments to the companies of which the applicant was the director. In accordance with Dutch tax laws, these assessments were increased by 100% implying the commission of fiscal offences or gross negligence. The companies started fiscal proceedings challenging the supplementary tax assessments.   8.     As the fiscal authorities failed to decide the challenges brought by the companies, the S. and S.N. companies started summary proceedings (kort geding) before the President of the Regional Court (Arrondissementsrechtbank) of The Hague. By judgment of 15 May 1985, the President ordered the fiscal authorities to determine the objections against the tax assessments brought by the S. and S.N. companies within four weeks, thus allowing the companies to submit their fiscal dispute to the judicial authorities, in case the companies would consider this to be appropriate.   9.     The companies concerned withdrew the proceedings concerning the supplementary tax assessments in the course of 1993 and 1994.   10.    On 28 June 1982, a discussion took place between two inspection officers of the Audit Division of the Department of Direct Taxes (Afdeling Controle der Directe Belastingen) of The Hague, i.e. Mr. G. and Mr. D., and the S.N. company's lawyer. In the course of this discussion, Mr. H., the company's accountant, and the applicant were invited to answer a number of questions put by these officers.   11.    On 1 September 1982, Mr. G. of The Hague Department of Direct Taxes was transferred to the Fiscal Intelligence and Investigation Department (FIOD).   12.    In May 1984 the Audit Division of the Department of Direct Taxes in The Hague handed the investigation against, inter alia, the companies of which the applicant was director over to the FIOD.   13.    On 14 June 1984, the FIOD interrogated the applicant as a suspect. In the same month the FIOD seized his accounts for investigation purposes. Between 27 February 1985 and 10 June 1986 the FIOD questioned about 70 persons in connection with the investigation against the applicant.   14.    On 8 May 1985, the applicant was arrested on suspicion of fraud and detained on remand. He was conditionally released on 17 June 1985. The conditions for his release, inter alia, a bank guarantee of 200.000 Dutch guilders, were lifted on 11 December 1985.   15.    On 10 May 1985 a judicial investigation (gerechtelijk vooronderzoek) against the applicant was opened, during which the investigating judge heard the applicant on four occasions. The investigating judge further examined 25 witnesses and 3 experts, most of whom at the applicant's request.   16.    The judicial investigation was closed in January 1989 and the applicant was subsequently summoned to appear before the Regional Court (Arrondissementsrechtbank) of The Hague on 13 April 1989 on five counts of fraud, and for participation in a criminal organisation.   17.    The applicant's objection (bezwaar) against the summons was rejected after a hearing, and on 18 May 1989 the Regional Court started its examination of the substance of the charges. Another hearing was held on 27 July 1989. On 10 August 1989 the Regional Court acquitted the applicant of participation in a criminal organisation, convicted him of five counts of fraud and sentenced him to twenty-four months' imprisonment, six months of which suspended pending a probation period of two years, and a fine of 500.000 Dutch guilders. The time the applicant had spent in pre-trial detention was to be deducted from his prison sentence.   18.    Both the applicant and the public prosecutor filed an appeal against this judgment with the Court of Appeal (Gerechtshof) of The Hague.   19.    On 11 July 1991 the Court of Appeal quashed the Regional Court's judgment, convicted the applicant of three counts of fraud, acquitted him of two counts of fraud and, in accordance with Section 63 of the Criminal Code (Wetboek van Strafrecht) after having noted a previous conviction, sentenced him to six months' imprisonment, three months of which were suspended pending a probation period of two years, and a fine of 25.000 Dutch guilders.   20.    As to the argument that the prosecution should be declared inadmissible because the criminal charges had not been determined within a reasonable time, the Court of Appeal found that the criminal proceedings had started on 14 June 1984, when the applicant had been questioned for the first time. It further held that:   [translation]       "It concerns the administration of a number of closely       intertwined companies with limited liability which attempted to       conceal that association from the outside world. At the outset       of the investigation against the suspect this was still far       from clear and it was also unclear that use had been made of       fake invoices (...). In view of the complexity of the       investigation, the reasonable time within the meaning of       Article 6 of the European Convention of Human Rights has not       been exceeded at that stage of the present case. (...) The       defence attributes the long duration of the judicial       investigation also to the inferior quality of the investigation       by the Fiscal Information and Investigation Department and the       limited time of which the investigating judge disposed. Be that       as it may, the long duration is primarily caused by the       defence's wish to have many witnesses, who had already been       interrogated, examined again very extensively. Even though the       investigation by the FIOD may not have been flawless, the       judicial authorities are certainly not exclusively or mainly to       blame for the fact that this complex case has taken much time.       Also in the appeal proceedings in the present criminal case the       reasonable time has not been exceeded, considering, on the one       hand, the duration of this period, and, on the other hand, the       grave facts at issue. Taking all the aforementioned into       account, the total length of the proceedings up to this present       day in this criminal case has not exceeded a reasonable time       either. The court refers to what it has stated above as regards       the complexity of the case."   21.    As regards the sentence to be imposed, the Court of Appeal held, inter alia,:   [translation]       "On the one hand, the Court is of the opinion that an       unconditional prison sentence is in every respect justified,       taking into account the seriousness of the proven facts. The       suspect was the actual director of S. and S.N. In that capacity       the suspect has committed, for an extended period of time and       on a large scale, evasion of paying due social security       contributions and due corporation taxes, in order to line the       purses of these companies and/or benefit the people who were in       charge of these companies, all to the detriment of third       parties.       On the other hand, the Court takes into account the time that       has elapsed since the commission of the offences the suspect       was charged with. The court will therefore now proceed to       impose a prison sentence of a duration to be stated below half       of which will be conditional and this in combination with a       fine."   22.    The applicant's subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 1 December 1992. Insofar as the applicant repeated his complaint that the criminal charges against him had not been determined within a reasonable time, the more so as the proceedings against him should be considered to have started on 31 December 1981, the Supreme Court accepted the reasoning of the Court of Appeal.   23.    Pursuant to the relevant rules contained in the General State Taxes Act (Algemene Wet inzake Rijksbelastingen), the 100 % increase of the additional tax assessments ceased to apply as the facts on which this increase was based had led to a separate irrevocable substantive judgment.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   24.    The Commission has declared admissible the applicant's complaint that his case has not been heard within a reasonable time.   B.     Point at issue   25.    The only point at issue is whether the length of the proceedings complained of has exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.     C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   26.    The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows :         "In the determination of ... any criminal charge against him,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   27.    The proceedings in question concerned the determination of tax related offences.   The proceedings accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   28.    It must first be determined at which point in time these proceedings started for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention.   29.    The applicant submits that the proceedings against him started on 31 December 1981, when he received the first additional tax assessment increased by 100%. He states that, although no penalty was explicitly imposed with this assessment, the increase it contained was implicitly tantamount to a penalty.   30.    The respondent Government submit that the criminal proceedings at issue started on 14 June 1984, when the FIOD examined the applicant as a suspect. Before that date it was by no means obvious that steps would be taken against the applicant under criminal law.   31.    According to the Government, the applicant confuses two procedures, namely on the one hand the administrative law procedure in which the Inspector of Direct Taxes imposes a fine and, on the other hand, a criminal procedure instituted by the public prosecutions department.   32.    The Commission recalls that the period to be taken into consideration under Article 6 para. 1 (Art. 6-1) of the Convention begins at the time when formal charges are brought against a person or when that person has otherwise been substantially affected by actions taken by the prosecution authorities as a result of a suspicion against him (cf. Eur. Court HR, Eckle v. Germany judgment of 15 July 1982, Series A no. 50, p. 33, para. 75).   33.    The Commission notes that, at the final stage of the fiscal investigations against the companies with limited liability of which the applicant was the director, suspicions arose against the applicant in person. He was subsequently interrogated as a suspect on 14 June 1984 and shortly after that date a criminal judicial investigation against him was opened. The Commission does not find it established that the applicant in his personal capacity, rather than in his capacity as director, has been substantially affected by the fiscal investigation prior to that date. The Commission therefore accepts that the period to be examined under Article 6 para. 1 (Art. 6-1) of the Convention started on 14 June 1984.   34.    The Commission considers that the proceedings at issue ended on 1 December 1992, when the Supreme Court rejected the applicant's appeal in cassation. The proceedings therefore lasted almost eight years and six months.   35.    As regards the duration of the criminal proceedings against him, the applicant submits that in virtually all stages of the proceedings there were excessively long periods of inactivity imputable of the prosecution and judicial authorities.   36.    The Government submit that it was only the preliminary judicial investigation which took longer than desirable. However, given the very large and complex criminal investigation in which the FIOD heard more than 70 persons, and the investigating judge heard 25 witnesses and three experts most of whom at the request of the defence, the Government are of the opinion that it cannot be said that this investigation was not completed within a reasonable time. The Government finally submit that the proceedings before the Dutch courts did not last excessively long.   37.    In view of these elements and further taking into account that the applicant spent only just one month in pre-trial detention, the Government are of the opinion that the proceedings did not exceed a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   38.    The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   39.    At the outset, the Commission considers that the main feature of the case was its elaborate and complex character.   The suspicion against the applicant concerned white collar crimes, i.e. large scale tax evasion involving a number of companies. Such offences are often purposely conducted, and were so in this case, by means of complex transactions in order to escape the control of the investigating authorities.   40.    The Commission finds that the applicant did not unreasonably contribute to the overall length of the criminal proceedings against him by requesting the examination of witnesses before the investigating judge, although his requests may have resulted in a certain delay.   41.    In respect of the conduct of the Dutch authorities, the Commission notes that between 14 June 1984 - when the applicant was interrogated for the first time - and January 1989 - when the judicial investigation against him was closed - the applicant's accounts had been seized for verification, a considerable number of persons had been heard by the FIOD and 25 witnesses and three experts had been heard before the investigating judge. The first hearing before the Regional Court took place on 13 April 1989.   42.    Although the duration of the pre-trial investigation appears comparatively long, it is in the Commission's opinion explained by the particular complexity of the case which required a very elaborate investigation.   43.    The Commission finds that thereafter the authorities conducted the proceedings with relative speed.   The Regional Court gave its judgment on 10 August 1989, the Court of Appeal on 11 July 1991 and the Supreme Court on 1 December 1992.   44.    In assessing the length of the proceedings, the Commission has finally considered that the applicant was only detained for a period of one month and nine days and that his sentence was mitigated by the Court of Appeal in view of the lapse of time in his case.   45.    In view of the particular complexity of the case which required an elaborate investigation in combination with the relatively short period of the applicant's detention and the reasons given for the mitigation of the sentence, the Commission does not find that there has been a violation of the applicant's right to a hearing within a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. R.B. v. Switzerland, Comm. Report 24.5.95; CM Resolution 15.12.95, No. DH (95) 395).         CONCLUSION   46.    The Commission concludes, unanimously, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber