CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 mai 1966

.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 }  THE FACTS   Whereas the facts as presented by the Applicants may be summarised as follows:   The Applicants are Dutch citizens and were first represented before the Commission by a certain Mr. X living at Gasselter Nyveen. After Mr. X's death in August 1965, the Applicant A has acted before the Commission on his own behalf and as representative of the other Applicants. The Applicants are all children of Y and his wife, Z. Y owned one of the biggest building-contracting companies in the north of the Netherlands. When he died in 1940, the shares in the company were transferred partly to his widow, Z, and partly to his children. The widow, however, also retained a certain right in respect of the shares owned by the children. It appears that Z is now also deceased.   1. Application No. 1904/63   The Act on Taxation of Increased Fortunes (Wet op de vermogenaanwasbelasting) provided for a special war-profit tax to be levied on such increases of fortunes as had arisen in the years 1940 - 1945. The Applicants state that in the determination of this tax, the Tax Inspector was obliged, according to the relevant legislation, to refer questions concerning the valuation of shares and bonds to a special Valuation Commission (Schattingscommissie), if he did not agree with the tax-payer on the value of such property. The Applicants state that in the present case the Tax Inspector at Harlingen estimated that, in 1940, the shares in the Company had only been worth about 35,000 guilders;   in the opinion of the Applicants this value was far too low. On the basis of this value it was considered that a substantial war-profit had been made and a tax amounting to about 175,000 guilders was imposed on Z. The Applicants state that, at the beginning of the War, the shares had already, for tax purposes, been valued at 350,000 guilders and a profit tax of 151,000 guilders had then been levied;   the value which the Tax Inspector attached to the shares could therefore not be correct. They also point to a number of other facts in order to show that the value of the shares had not increased between 1940 and 1945 and that no tax should have been imposed. The Applicants complain that, while the shares owned by Z were valued by the Valuation Commission, the Tax Inspector refused to send the shares owned by the children for a similar valuation, although, in their opinion, he was legally obliged to do so;   they maintain that these other shares had, in fact, a higher value which should have been considered when deciding on the value of the company in 1940. It seems that by letters of ... and ... 1958 the Tax Inspector ultimately refused to send these shares for valuation. The Applicants then lodged an appeal with the Court of Appeal (Gerechtshof) at Leeuwarden which, on ... 1959, decided that it was not competent to deal with an appeal against such a decision. On ... 1961 the Supreme Court (Hoge Raad) dismissed a further appeal against the decision of the Court of Appeal. The Applicants state that they were told by the President of the Court of Appeal that they ought to complain to the Tax Inspector's superiors in the Ministry of Finance. Such a complaint was lodged but, on ... 1963, the Minister of Finance refused to take any action. In referring to the dismissal of their appeals, the Applicants complain that in Dutch law no remedy exists in regard to the illegal decision of a Tax Inspector, as complained of in this case. They further state that they were responsible as "second degree tax-payers" for the taxes imposed on their mother and they indicate that they have actually paid 51,000 guilders of the taxes concerned. They allege violations of Articles 3, 4, 5, 6, 8 and 13 of the Convention and request compensation.   2. Application No. 2029/63   The Applicants state that Z's shares had first been valued by the State Auditors (Rijksaccountantsdient) at Leeuwarden. This valuation was allegedly not correct and, on ... 1958, the Supreme Court refused to accept the estimates of the auditors and ordered a revaluation. It is alleged, however, that on ... 1958 the Tax Inspector sent the incorrect figures to the Valuation Commission without informing it of the decisions of the Supreme Court. The Applicants further state that the Valuation Commission, believing that the figures were correct, confirmed the valuation of the auditors. The Applicants maintain that appeals relating to the valuation have been dismissed by the Court of Appeal on ... 1959 and by the Supreme Court on ... 1963. On ... 1963, the Minister of Finance refused to take any action. The Applicants complain of the incorrect valuation of the auditors and of the Tax Inspector's action in forwarding the figures without giving adequate information about the Supreme Court's decision. They also complain that no domestic remedy exists in this regard, although, in fact, a decision of the Supreme Court has been disregarded. They allege violations of Articles 3, 4, 5, 6, 8 and 13 of the Convention and request compensation.   3. Application No. 2094/63   The Applicants maintain that they and their brother E deposited a total amount of 51,000 guilders as security for certain taxes for which they themselves were liable but that the Tax Collector at Bolsward used this amount in order to pay their mother's taxes. They allege that, when doing this, the Tax Collector acted contrary to law since, according to the relevant legal provisions, property cannot be seized in payment of taxes unless the Tax Collector presents an order issued "in the name of the Queen";   the tax-payer will then have the possibility of raising objections against this order and of having such objections tried by a Court. The Applicants now complain that by the Tax Collector's unofficial action they were not only illegally deprived of their money but also of any remedy before a Court. They indicate that the Courts have dismissed their appeals and refer to decisions of the Supreme Court dated ... 1961 and ... 1963. On ... 1963 the Minister of Finance refused to take any action. The Applicants add that the Tax Collector had at his disposal assets, deposited or seized, belonging to Z and that these assets should first have been used in payment of her taxes. They maintain, however, that although in Dutch law taxes take precedence over other debts, some of these assets were used by the Tax Collector for other payments. They allege violations of Article 6 and 13 and request compensation.   4. Application No. 2217/64   As mentioned above, Z inherited a part of the shares in the company and retained, furthermore, an interest in the shares of her children. She subsequently transferred to her children her remaining right to their shares. The Applicants state that the right so transferred was first considered as a usufruct and its value was estimated at 137,000 guilders. When calculating the war-profit, the Tax Inspector took this value into account, and the tax was thereby increased. The Applicants state, however, that on ... 1962 the Court of Appeal at Leeuwarden reconsidered the nature of the gift and concluded that it did not concern a usufruct but a "personal right", and this decision was upheld on ... 1963 by the Supreme Court. The Applicants consider that, as a consequence of the decision of the Courts, the gift would have to be revalued, since the previous valuation was based on the assumption that the right transferred was a usufruct. Accordingly, they submitted a request for revaluation to the Tax Inspector at Harlingen, but on ... 1964 this request was rejected, and subsequently the Minister of Finance refused to intervene. The Applicants complain that the decisions of the Courts have not been taken into account when determining the tax and that no domestic remedy exists.   They allege violations of Articles 6 and 13.   Proceedings before the Commission   Whereas the proceedings before the Commission may be summarised as follows:   On 11th February 1965, a group of three members of the Commission made a preliminary examination as to the admissibility of the four Applications, in accordance with Rule 45, paragraph 1, of the Commission's Rules of Procedure and the group reported unanimously that the Applications appeared to be admissible. Consequently, the President of the Commission, acting in accordance with Rule 45, paragraph 2, of the Rules of Procedure, gave notice of the Applications to the Netherlands Government and invited it to submit to the Commission its observations in writing on the admissibility.   On 16th June 1965, the Netherlands Permanent Representative at the Council of Europe submitted the Government's written observations. Subsequently, X submitted a number of pleadings in reply to the Government's observations.   On 24th September 1965, the Commission examined the four Applications. The Commission considered that certain passages in X's pleadings contained insulting and provocative expressions and decided to indicate to him that, unless he was willing to withdraw or amend these parts of his submissions, the Commission would consider whether or not it should declare the Applications inadmissible as being an abuse of the right of petition within the meaning of Article 27, paragraph (2), of the Convention.   On 3rd January 1966, A informed the Commission that X had died in August 1965. He also asked the Commission to discontinue the proceedings in regard to the Applications since he could not afford to engage another person to represent him and the other Applicants. On 7th January 1966, the Secretary to the Commission replied that it would be for the Commission to consider what action to take in regard to the intended withdrawal and that, in the meanwhile, the Applicants should indicate their position as to the insulting and provocative expressions used by X. On 20th January 1966, A informed the Commission that the Applicants were prepared to withdraw the expressions concerned. On 26th January 1966, the Secretary stated, in a letter to A, that he had noted that the only reason given for the proposed withdrawal was lack of financial means to instruct a lawyer and he pointed out that the Commission had the power, subject to certain conditions, to grant legal aid. On 3rd February 1966, A stated that he no longer wished to withdraw the four Applications; he considered, however, that he could not ask for legal aid. By letters of 8th February, 15th March and 19th April 1966, the Secretary asked A to indicate whether he was prepared to rely on the submissions made by X (excluding the insulting and provocative expressions already withdrawn) or whether he had any further comments to make. On 25th April 1966, A informed the Commission that he relied on X's submissions.   Submissions of the Parties   Whereas the further submissions of the Parties may be summarised as follows:   1. Application No. 1904/63   The Government stated that under Dutch law the Tax Inspector had no obligation to ask for a valuation by the Valuation Commission unless he intended to impose a tax on a certain person on the value of the shares concerned. However, the Tax Inspector did not, and does not, intend to impose a war-profit tax on the Applicants and, consequently, he was not obliged to proceed to a valuation of their shares. An appeal would only be available in regard to the taxation itself and no tax has been imposed on the Applicants. They have merely been held responsible for Z's tax by reason of a gift received from her. The representative of the Applicants replied that their shares ought to have been valued since their value was important for the calculation of the tax to be imposed.   2. Application No. 2029/63   The Government stated that the Supreme Court had not, in its decision of ... 1958, indicated any opinion as to whether the valuation by the State Auditors (Rijksaccountantsdienst) was correct but had merely stated that, contrary to the law, the Valuation Commission had not been asked to value Z's shares. It is irrelevant whether the Tax Inspector, when subsequently asking for such a valuation, informed the Valuation Commission of the contents of the decision of the Supreme Court. The representative of the Applicants again stated, in reply, that the incorrect valuation of the Valuation Commission was a result of the Tax Inspector's failure to inform the Valuation Commission of the Supreme Court's decision.   3. Application No. 2094/63   The Government stated that the Tax Inspector had fixed, on ... 1949, the amount for which each Applicant was responsible in respect of the war-profit tax imposed upon Z. The remedies available in regard to this decision were exhausted and the final decisions were given by the Supreme Court on ... 1963. Consequently, the Tax Collector was entitled to use such assets of the Applicants as were at his disposal as payment of these amounts. It was not necessary to issue a summons against the Applicants as he could use the Applicants' claims against the authorities to balance their debts in respect of the war-profit tax concerned. This could be done in accordance with Articles 1461 et seq. of the Civil Code and the Applicants could have instituted civil proceedings if they did not agree, but they failed to do this. It is not true that under Dutch law the Tax Collector had first to seize certain other assets, since, according to Articles 437 and 598 of the Code of Civil Procedure, it is for the creditor to choose the assets which he wishes to use in payment of the debt. The representative of the Applicants contested the Government's statement that a remedy existed before the civil courts and referred to a statement by the Minister of Finance. He maintained that the procedure followed in the present case had been contrary to Dutch law and repeated that certain property seized from Z or deposited by her ought to have been used for the payment of the war-profit tax and not of other debts. 4. Application No. 2217/64   The Government stated that the Tax Inspector, when calculating the war-profit tax, had rightly taken into account the gifts to the Applicants, and the Government referred to decisions of the Appeals Board for Direct Taxes (Raad van Beroep voor de directe belastingen) of Leeuwarden dated ... 1957, and of the Supreme Court dated ... 1958 and ... 1961. The Applicants' assertion that the Courts had found that the gift concerned a "personal right" is not correct and the Government referred in this respect to statements by the Supreme Court in its decisions of ... 1963. The Tax Inspector was under no obligation to proceed to a revaluation of the gifts. The Representative of the Applicants maintained that the courts had finally decided that the gift concerned a personal right and they stated that for this reason a revaluation ought to have taken place. 5. Conclusion   The Government stated that the Applicants' complaints were manifestly ill-founded and added   (a) in regard to the alleged violations of Articles, 3, 4, 5 and 8 of the Convention, that "the Applicants do not complain of torture or of inhuman or degrading treatment or punishment, nor of slavery or of compulsory labour, nor of deprivation of liberty or of security, nor of interference with the right to private life or to correspondence: apparently these Articles have been enumerated in order to make a weak contention more impressive";   (b) in regard to the alleged violations of Article 6 of the Convention, that "there has been no infringement of Article 6, of which notably paragraph 1 deals with matters pertaining to the subject of these claims, viz. the fair and public determination of civil rights and obligations (in casu the extent of taxes to be levied), since it is evident from the annexe mentioned above that the claimants, in so far as they have followed the procedure known to Netherlands law, have received a fair and public hearing of their case within a reasonable time by an independent and impartial tribunal, whereas, in so far as they do not make use of the existing procedures, they cannot blame the Netherlands Government of an act contrary to the Convention";   (c) in regard to the alleged violations of Article 13 of the Convention that "There has been no infringement of Article 13 since, as stated under 2, no right whatever of the claimants has been violated and, even if this had occurred or in so far as they thought this had occurred, they have been free to use existing legal remedies and, in one instance, use had been deliberately not made of an existing legal remedy".   The Government further stated that the Applications might even be considered as an abuse of the right of petition (Article 27, paragraph (2), of the Convention) since they had been lodged "following upon many contentions and complaints made in this cause by the same claimants and subsequently found inaccurate by several Netherlands tribunals". The representative of the Applicants replied that the Applicants had been subjected to mental torture and to degrading and inhuman treatment, since their money and their business had been confiscated and, as a result, their mother had died from a heart disease and they had been obliged to work for people who had previously been their employees. He stated that there had not been any fair and public hearing since taxation cases are never dealt with in public, not even by the courts.   THE LAW   Whereas, in regard to the alleged violations of Article 3, 4, 5 and 8 (Art. 3, 4, 5, 8 ) of the Convention, an examination of the case as it has been submitted does not disclose any appearance of a violation of any of the rights and freedoms set forth in the Convention; whereas it follows that these parts of the Applications are manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention;   Whereas, in regard to the alleged violations of Article 6 (Art. 6) of the Convention, the Commission first observes that paragraphs (2) and (3) of this Article (Art. 6-2, 6-3) are clearly not applicable to the circumstances of the present case since these paragraphs only concern persons "charged with a criminal offense"; whereas, however, Article 6, paragraph (1), (Art. 6-1) gives everyone certain procedural guarantees "in the determination of his civil rights and obligations or of any criminal charge against him";   Whereas, consequently, the question arises whether the proceedings in the present case concerned the determination of the Applicants' civil rights or obligations;   Whereas all the proceedings complained of concerned the impositionof a tax or the execution of decisions by which a tax had been imposed;   Whereas, in a previous case (Application No. 2145/64 X against Belgium, Collection of Decisions, Volume 18, page 1), the Commission has already found that Article 6, paragraph (1) (Art. 6-1), was not applicable to certain proceedings regarding taxation; whereas the Commission stated in this previous decision that these proceedings concerned a matter falling under public law and not under private law, although the fiscal measure complained of had repercussions on the Applicant's property rights;   Whereas, in reliance upon with this previous decision, the Commission finds that the proceedings complained of in the present case fall outside the competence of the Commission ratione materiae and that, consequently, these parts of the Application are incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention. Whereas, in regard to the alleged violations of Article 13 (Art. 13) of the Convention, it is to be observed that, according to this provision, an effective remedy shall be given to "everyone whose rights and freedoms as set forth in this Convention are violated"; whereas the Commission has held above that none of the provisions of the Convention invoked by the Applicants have been violated in the present case;   Whereas it follows that Article 13 (Art. 13) has not been violated and that these partsof the Applications are manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   Now therefore the Commission declares these Applications INADMISSIBLE.