CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 juillet 1995

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 22046/93                       by H.J.B.                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 4 July 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 31 March 1993 by H.J.B. against the Netherlands and registered on 11 June 1993 under file No. 22046/93;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 12 October 1994 to communicate the      application;   -     the observations submitted by the respondent Government on      17 January 1995 and the observations in reply submitted by the      applicant on 29 March 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch national, born in 1943, and resides at Amsterdam. Before the Commission he is represented by Mr. J. Groen, a lawyer practising in The Hague.        The facts of the case, as submitted by the parties, may be summarised as follows.        Between 1 October 1982 and the beginning of 1983 the applicant worked for a Dutch company with limited liability, Y., in the Netherlands. In 1983 he moved to Belgium.        In 1983 the applicant founded and, until 1985, was managing director of a Belgian advertising company with limited liability, X.        In December 1985 the Dutch tax authorities and the Government Audit Department (Rijksaccountantsdienst) investigated the Y. company. As a result of their findings, the Fiscal Intelligence and Investigation Department (Fiscale Inlichtingen en Opsporingsdienst - hereinafter referred to as "FIOD") started an investigation in August 1986 into allegations of fraud perpetrated by the Y. company. In the course of this investigation a large number of people who had been involved with the Y. company over the years were heard. In September 1986 the accounts of the Y. company were confiscated by the FIOD.        On 25 November 1986 the applicant, who in the meantime had returned to the Netherlands, was questioned by officers of the FIOD, since it had appeared from the Y. company's accounts that the X. company had charged the Y. company more for certain services than other companies had done for similar services.        Before being questioned by the FIOD, the applicant was informed that he was under no obligation to answer the questions put to him. The applicant made a statement and admitted having drawn up falsified invoices for the Y. company but refused to answer questions about certain particular invoices since, at that time, his accounts were not available to him. He stated he would revert to the matter together with his lawyer. He was also confronted with an incriminating statement made by one of the founders of the Y. company to the FIOD on 24 November 1986, claiming that the applicant had committed fraudulent acts. The applicant refused to sign the minutes of the questioning without previously having consulted his lawyer.        On 25 February 1987 the FIOD questioned the applicant, in the presence of his lawyer, for a second time. He was again informed that he was under no obligation to answer the questions put to him. The applicant answered certain questions and informed the FIOD that he was unable to consult his accounts, since these were held by his Belgian accountant who refused to hand them over unless the applicant would pay him an outstanding debt. The applicant again refused to sign the minutes of the questioning, although he declared their contents to be correct.        On 9 March 1987 the applicant was arrested and detained on remand on suspicion of fraud. According to the Government he was released on 17 March 1987; the applicant claims, however, that he was released on 14 March 1987.        The FIOD closed its investigation at the end of May 1987 and the resulting comprehensive minutes, dated 26 May 1987, were received by the Prosecution Department (Openbaar Ministerie) of Amsterdam on 29 July 1987. These comprehensive minutes contained, inter alia, the records of the interviews of the FIOD with the applicant which had taken place on 25 November 1986, 25 February and 9 March 1987. In these records the applicant is referred to as a suspect.        On 27 December 1988 the applicant was summoned to appear on 17 January 1989 before the Regional Court (Arrondissementsrechtbank) of Amsterdam on charges of fraud.        The hearing on 17 January 1989 was adjourned by the Regional Court in accordance with a request by the applicant's counsel, who stated that he had received the case-file so late that he had been unable to prepare the defence adequately.        A hearing took place on 11 April 1989. After having questioned the applicant, the Regional Court adjourned the proceedings as the available time was too short. Further hearings took place on 23 May, 4 July and 5 September 1989, during which the Regional Court heard a number of witnesses. The Government contend that these witnesses were heard at the request of the applicant's counsel. The applicant, however, denies this and submits that the hearing of these witnesses was requested by the counsel of a co-defendant.        On 19 September 1989 the Regional Court convicted the applicant of fraud and incitement to fraud, and sentenced him to eighteen months' imprisonment. In its judgment the Regional Court deemed the period during which the Prosecution had been in possession of the case-file without any investigation having taken place to have been undesirably long ("onwenselijk lang"), but it held that this period had nevertheless not exceeded a reasonable time.        The applicant, on 21 September 1989, and the prosecution, on 29 September 1989, filed an appeal against this judgment with the Court of Appeal (Gerechtshof) of Amsterdam. On 25 June 1991 a hearing was held before the Court of Appeal.        On 9 July 1991 the Court of Appeal quashed the judgment of 19 September 1989, convicted the applicant of fraud and incitement to fraud and sentenced him to eight months' imprisonment. The Court of Appeal rejected the applicant's argument that the prosecution should be declared inadmissible as it could no longer be held that the criminal charges against him would be determined within a reasonable time as required by Article 6 para. 1 of the Convention. It held in this respect that the proceedings at issue had started on 9 March 1987 with the applicant's arrest and not on 25 November 1986, when he was questioned for the first time, since from this questioning he could not reasonably have deduced that criminal charges would be brought against him.        The applicant's appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 15 December 1992. As regards the applicant's complaint of excessive length of the criminal proceedings against him, the Supreme Court accepted the Court of Appeal's findings.   COMPLAINT        The applicant complains under Article 6 para. 1 of the Convention that the criminal proceedings against him, lasting from 25 November 1986 until 15 December 1992, were not terminated within a reasonable time.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 31 March 1993 and registered on 11 June 1993.        On 12 October 1994 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits.        The Government's written observations were submitted on 17 January 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 29 March 1995.   THE LAW        The applicant complains of the length of the criminal proceedings against him. He invokes Article 6 para. 1 (Art. 6-1) of the Convention, which provides, insofar as relevant:        "In the determination of (...) any criminal charge against him,      everyone is entitled to a (...) hearing within a reasonable time      by a (...) tribunal (...)."        The Government submit in the first place that the FIOD's interviews with the applicant on 25 November 1986 and 25 February 1987 were conducted in the context of an audit at the Y. company in connection with suspected tax fraud, in which the applicant had been mentioned as someone who might have been involved in fraudulent activities. The mere fact that he was informed at the beginning of these interviews that he was not obliged to answer does not, in the Government's view, mean that there was a criminal charge against him at that moment or that his prosecution was in prospect. A criminal charge against the applicant only existed from the moment of his arrest and detention on 9 March 1987.        The Government further submit that the investigation carried out by the FIOD was extensive and complex. They allege that, insofar as there can be said to have been any delay in this case, this is at least partly attributable to the applicant's counsel, who, during the hearings before the Regional Court, repeatedly asked for the case to be adjourned and for witnesses to be heard.        The applicant maintains that the period to be taken into consideration started on the day of his first interview by the FIOD on 25 November 1986, during which he was told that he was not obliged to answer and was considered a suspect, as is apparent from the comprehensive minutes.        He submits that the investigation by the FIOD may have been complex, but adds that this investigation had been completed by the end of May 1987. The applicant points to a number of periods of inactivity which are, in his opinion, wholly attributable to the State. He further denies that his counsel requested the hearing of witnesses before the Regional Court but submits that these witnesses were heard at the request of the counsel of a co-defendant.        The Commission, after a preliminary investigation of the present complaint in the light of the parties' submissions, considers that it raises questions of fact and law which require an examination of the merits. This complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the Second Chamber       President of the Second Chamber          (M.T. SCHOEPFER)                        (H. DANELIUS)