CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 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. 21351/93                       by J.J.                       against the Netherlands        The European Commission of Human Rights sitting in private on 16 October 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 12 November 1992 by J.J. against the Netherlands and registered on 9 February 1993 under file No. 21351/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      28 February 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch citizen, born in 1942, and resides at Weiteveen, the Netherlands. He is a professional tax consultant.        The facts of the case, as submitted by the parties, may be summarised as follows.   a.    Particular circumstances of the case        On 14 December 1989, the tax inspector sent a supplementary income tax assessment to the applicant. In accordance with Dutch rules on taxation, a fiscal penalty was imposed, which raised the amount due by 100%. The penalty amounted to 38.656 Dutch guilders.        On 20 December 1989, the applicant lodged an appeal against the tax assessment with the Court of Appeal (Gerechtshof) of Leeuwarden. By letter of 21 December 1989, the registrar of the Court of Appeal requested the applicant to pay a court registration fee (griffierecht) of 75 Dutch guilders pursuant to Section 5 of the Administrative Decisions Appeals Act in Taxation Cases (Wet Administratieve Rechtspraak Belastingzaken; hereafter referred to as "WARB").        On 23 March 1990, the appeal was declared inadmissible because the applicant had failed to pay the court registration fee. The applicant lodged an objection (verzet) against this decision with the Court of Appeal of Leeuwarden. On 26 October 1990, the Court of Appeal rejected the objection as ill-founded.        Thereupon, the applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad). He submitted that the non-payment of the court registration fee was caused by an error on the part of his bank, for which he could not be held responsible. The applicant further submitted that in cases of this kind, which concern the determination of a criminal charge, the levying of a court registration fee is contrary to Article 6 para. 1 of the Convention.        In the proceedings before the Supreme Court, written submissions in reply (vertoogschrift) were made by the Deputy Minister of Finance (Staatssecretaris van Financiën) in reply to the applicant's appeal in cassation. On 19 November 1991, the Procurator General (Procureur- Generaal) to the Supreme Court submitted his written conclusions (conclusie), advising to reject the appeal in cassation.        On 17 June 1992, the Supreme Court rejected the appeal. It ruled that the levying of a court registration fee in criminal cases is, in itself, not contrary to Article 6 para. 1 of the Convention. It further ruled that the amount of the fee that must be paid pursuant to Section 5 of the WARB, in combination with the possibility of a reduction in the fee, is not such that it constitutes a serious obstacle to the access to court.   b.    Relevant domestic law        Pursuant to Section 21 of the National Taxation Act (Algemene Wet inzake Rijksbelastingen), a supplementary tax assessment may be increased by a 100% surcharge if the fact that insufficient taxes have been paid is due to the tax debtor's gross negligence or intent.        Pursuant to Section 23 of the National Taxation Act a tax debtor can lodge an objection (bezwaarschrift) against an assessment of taxes with the tax inspector. Against the inspector's decision on an objection an appeal lies with the Court of Appeal.        However, it is also possible to appeal directly to the Court of Appeal against a tax assessment without having first lodged an objection to the inspector. Against the judgment of the Court of Appeal an appeal in cassation lies with the Supreme Court.        Parties to tax proceedings are the tax authorities and the natural or legal person whose taxes are assessed.        Pursuant to Section 5 para. 1 of the WARB, a court registration fee of 75 Dutch guilders is levied for an appeal with the Court of Appeal. In the case of an appeal in cassation, a fee of 300 Dutch guilders is levied. However, the fee is reduced to 40 and 150 Dutch guilders respectively, when the proceedings concern an amount of tax not exceeding 150 Dutch guilders (Section 5 para. 3 WARB). For natural persons with limited financial resources, the fee is reduced to 40 and 75 or 150 Dutch guilders respectively (Section 5 para. 4 WARB). Section 5 para. 7 WARB provides for the reimbursement of the fee if the appeal against the assessment is found to be partially or wholly well-founded.        Pursuant to Section 5 para. 5 of the WARB the appeal will, as a rule, be declared inadmissible if the court registration fee has not been paid within eight weeks from the date on which the registrar of the Court of Appeal or the Supreme Court has sent a letter requesting payment of the fee.        While the obligation to pay a court registration fee in the case of an appeal in cassation with the Supreme Court has existed for a long time, the obligation to pay a fee in the case of an appeal with the Court of Appeal was only introduced in 1983. The fee was introduced to cover part of the expenses of the administration of justice, and to stimulate tax debtors to make a well-considered decision regarding the introduction of an appeal. The same reasons were given when the court registration fees were raised in 1985.        Section 22 of the WARB provides that the registrar of the Supreme Court shall send a copy of the opposing party's written submissions in reply (vertoogschrift) to the party who has lodged the appeal in cassation.        Although proceedings before the Supreme Court, which are limited to points of law, are in principle in writing, Section 23 of the WARB provides that a hearing shall be held by the Supreme Court upon the request of a party to the tax proceedings. The party lodging the appeal in cassation can make such a request either when lodging the appeal in cassation or within fourteen days after having received the written submissions in reply of the opposing party. The opposing party can request such a hearing when making written submissions in reply.        After the hearing, or in the absence of a hearing after the submissions of the parties to the proceedings, the Procurator General will submit his written conclusions to the Supreme Court (Section 24 WARB). After the submission of these conclusions the Supreme Court will deliberate in chambers (raadkamer). The Procurator General does not participate in these deliberations.        If the Supreme Court decides to quash the judicial decision complained of, it can either decide the case itself, or, in cases where a decision on the merits depends on factual questions, refer the case back to the Court of Appeal which took the quashed decision or to another Court of Appeal (Section 25 WARB).   COMPLAINTS   1.    The applicant complains that the levying of a court registration fee in criminal cases infringes his right of access to court and is, therefore, contrary to Article 6 para. 1 of the Convention. He argues that there should be no fee at all in criminal cases.   2.    The applicant complains under Article 6 para. 1 of the Convention that, in the proceedings before the Supreme Court, he was not able to respond to the written submissions in reply of the Deputy Minister of Finance and the written conclusions of the Procurator General at the Supreme Court.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 November 1992 and registered on 9 February 1995.        On 7 December 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 28 February 1995, and, by letter of 15 March 1995, these observations were communicated to the applicant, who was invited to submit his comments in reply before 3 May 1995.        When the time-limit for the submission of the applicant's observations in reply expired on 3 May 1995, no observations in reply had been received. Following a reminder sent to the applicant, he informed the Commission by letter of 3 July 1995 that he wished to pursue his application. The applicant has not submitted any observations in reply.   THE LAW   1.    The applicant complains that the levying of a court registration fee in criminal cases infringes his right of access to court and is, therefore, contrary to Article 6 para. 1 (Art. 6-1) of the Convention. He argues that there should be no fee at all in criminal cases.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:        "In the determination of (...) any criminal charge against him,      everyone is entitled to a fair (...) hearing (...) by an      independent and impartial tribunal (...)."        The Commission notes that the proceedings before the national courts concerned an assessment of the applicant's income tax including a 100% surcharge, on the basis that the applicant's failure to pay sufficient taxes was due to his gross negligence or intent. The Commission recalls that fiscal proceedings concerning tax assessments including a surcharge of a punitive character, as in the present case, fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court H.R., Bendenoun judgment of 24 February 1994, Series A no. 284, p. 20, para. 47). Article 6 para. 1 (Art. 6-1) of the Convention is, therefore, applicable to the proceedings at issue.        The Commission recalls that one of the elements of the right to a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention is the right to a court. One of the aspects of the right to a court is the right of access to a court (cf. Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 25, para. 49; and Eur. Court H.R., Ashingdane judgment of 28 May 1985, Series A no. 93, p. 24, para. 55).        The right of access to court is, however, not absolute but may be subject to limitations. In general, in considering limitations on access to court, the Commission must examine whether the limitation on access impaired the essence of that right, pursued a legitimate aim and bore a reasonable relationship of proportionality to that aim in the circumstances (cf. Eur. Court H.R. Ashingdane judgment, ibid., p. 24- 25, para. 57; and, Eur. Court H.R., Tolstoy Miloslavsky judgment of 13 July 1995, Series A no. 323, para. 59).        The present case relates to the requirement in tax proceedings to pay a court registration fee if an appeal is lodged with the Court of Appeal or the Supreme Court.        It appears that the applicant chose not to file an objection against the tax assessment with the tax inspector and took his case directly to the Court of Appeal.        The Commission has previously decided that the Contracting Parties are not debarred from making regulations governing the access of litigants to an appellate court (cf. No. 8407/78, Dec. 6.5.80, D.R. 20, p. 179; and No. 11122/84, Dec. 2.12.85, D.R. 45, p. 246) and that regulations concerning court registration fees undoubtedly serve the purpose of assuring a proper administration of justice (No. 14592/89, Dec. 13.12.89, unpublished).        The Commission observes that in the present case the aim of levying a court registration fee is to cover part of the expenses of the administration of justice and to discourage the lodging of prospectless appeals. The Commission has further noted the limited amount of the fee, and the possibilities for its reduction and/or reimbursement.        The Commission finds that the levying of the court registration fee at issue was in conformity with the criteria formulated in the Convention organs' case-law, and cannot be regarded as constituting an unacceptable obstacle to the lodging of an appeal with the Court of Appeal or the Supreme Court.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains under Article 6 para. 1 (Art. 6-1) of the Convention of his inability to respond to the written submissions in reply of the Deputy Minister of Finance and to the written conclusions of the Procurator General in the proceedings before the Supreme Court.        The Government submit that the proceedings before the Supreme Court at issue fall outside the scope of Article 6 (Art. 6) of the Convention. Given the fact that the proceedings before the Supreme Court did not concern the imposition of a fiscal fine, but the question whether the Court of Appeal could lawfully reject the applicant's appeal for failure to pay the required court fees, the Government are of the opinion that the proceedings in cassation did not constitute a determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission recalls its finding that the proceedings at issue fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention (see para. 1 above). The way in which Article 6 para. 1 (Art. 6-1) of the Convention is applied in proceedings in cassation depends, however, on the special features of such proceedings (cf. No. 10938/84, Dec. 9.12.86, D.R. 50, p. 98).        The fact that the present proceedings before the Supreme Court were limited to a preliminary issue, i.e. the question whether the Court of Appeal had correctly declared the applicant's appeal inadmissible for failure to comply with a procedural requirement, cannot automatically lead to the finding that the proceedings no longer involved a determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Having regard to Section 25 of the WARB, the Commission considers that the main object of the proceedings before the Supreme Court remained the determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   a.    As regards the applicant's complaint that he could not respond to the written submissions in reply of the Deputy Minister of Finance, the Commission notes that the applicant, either when introducing his appeal in cassation or within fourteen days after having received the written submissions in reply of the Deputy Minister of Finance, had the opportunity to ask the Supreme Court for a hearing in order to present his objections to these submissions but that he did not avail himself of this opportunity.        In these circumstances the Commission cannot find that the proceedings before the Supreme Court as regards the submissions of the Deputy Minister of Finance were contrary to the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b.    As regards the applicant's further complaint that he could not respond to the written conclusions of the Procurator General, the Commission is of the opinion, after a preliminary examination of the substance of this complaint in the light of the parties' submissions, that it raises issues of fact and law requiring an examination on the merits. This complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded. No other grounds for inadmissibility have been established.        For these reasons, the Commission, by a majority,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint that he could not respond to the written      conclusions of the Procurator General to the Supreme Court;      and,        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission        President of the Commission           (H.C. KRÜGER)                    (S. TRECHSEL)