CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 22531/93                       by Arie MANTEL and MANTEL HOLLAND BEHEER B.V.                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 15 May 1996, 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                  P. LORENZEN              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 13 July 1993 by Arie MANTEL and MANTEL HOLLAND BEHEER B.V. against the Netherlands and registered on 26 August 1993 under file No. 22531/93;        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      22 April 1995 and the observations in reply submitted by the      applicant on 3 July 1995;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant is a Dutch national, born in 1943, and currently resides at Andijk, the Netherlands. The applicant company is a Dutch company with limited liability, having its registered seat at Andijk, the Netherlands. The first applicant is one of the directors of the applicant company. Before the Commission the applicants are represented by Mr. F. van Schaik, a lawyer practising at Berkel en Rodenrijs, the Netherlands.        The facts, as submitted by the parties, may be summarised as follows.        Within the context of a joint investigation by the Inspection of Direct Taxes (Inspectie der Directe Belastingen), the Agricultural Social Funds (Agrarische Sociale Fondsen) and the Social Security Common Administrative Office (Gemeenschappelijk Administratiekantoor), the public prosecutor ordered a preliminary judicial investigation (gerechtelijk vooronderzoek) on 8 November 1985 into the salary administration of the applicant company, a company which cultivates and trades in flower bulbs. This investigation formed part of a large-scale investigation of tax fraud by five bulb-producing companies and their respective directors.        On 2 December 1985 the home of the first applicant and the premises of the applicant company were searched.        On 7 May 1986 the public prosecutor ordered an extension of the preliminary judicial investigation into the salary administration of the applicant company and some interviews were conducted by the investigating judge (rechter-commissaris). The applicants allege that the actual investigations were completed by the middle of 1986.        On 21 April 1987 the applicant company was notified in writing by the investigating judge of the closure of the preliminary judicial investigation. On 27 May 1987 the applicant company was notified of the prosecution's decision to commit the applicant company for trial (kennisgeving van verdere vervolging).        On 1 June 1987 the applicant company lodged an objection against this decision with the Regional Court (Arrondissementsrechtbank) of Alkmaar, claiming that the prosecution had become inadmissible because the Public Prosecutions Department (Openbaar Ministerie) had waited too long with giving notice of the committal for trial after it had notified the applicant company of the closure of the preliminary judicial investigation.        On 25 June 1987 a hearing took place before the Alkmaar Regional Court in chambers and on 30 July 1987 the Court in chambers decided to discontinue the proceedings (buitenvervolgingstelling) against the applicant company. The public prosecutor appealed against this decision on the same day.        Meanwhile, on 8 July 1987, the first applicant was summoned to appear before the Alkmaar Regional Court on 4 August 1987 on charges of ordering and directing forgery, committed by the applicant company, in his capacity as director of the applicant company.        On 13 July 1987 the first applicant lodged an objection against the summons with the Alkmaar Regional Court. He claimed that it would only have been possible for the Public Prosecutions Department to prosecute him if it had conducted the prosecution proceedings against him at the same time as they were being conducted against the applicant company. As the first applicant had neither received a notification of closure of the preliminary judicial investigation nor been notified of the decision to commit the case for trial, he considered that the Public Prosecutions Department could not decide at this stage to prosecute him.        Following a hearing on 4 August 1987, the Alkmaar Regional Court in chambers decided on 13 August 1987 to discontinue the proceedings against the first applicant. The public prosecutor appealed against this decision on 14 August 1987.        On 11 December 1987 hearings took place before the Court of Appeal (Gerechtshof) of Amsterdam in chambers in the cases of both applicants. On 25 February 1988 the Court of Appeal quashed the decisions to discontinue the proceedings and ruled that the applicants should stand trial. The Court considered in respect of the first applicant that he could not have deduced from the facts that he would not be prosecuted.        The applicants' appeals in cassation against the Court of Appeal's decisions were rejected by the Supreme Court (Hoge Raad) on 6 December 1988.        On 13 June 1989 hearings took place before the Alkmaar Regional Court in the cases concerning the criminal charges against the applicants.        On 27 June 1989 the Alkmaar Regional Court acquitted the applicants, holding that the searches of the first applicant's house and the applicant company's premises had been unlawful. On 11 July 1989 the public prosecutor appealed against these judgments.        Following a hearing in both cases on 25 April 1991, the Amsterdam Court of Appeal quashed the judgments of the Alkmaar Regional Court on 6 May 1991 and convicted the applicant company of forgery and the first applicant of ordering and directing this forgery in his capacity as director.        The Court of Appeal found that both sets of proceedings had taken an undesirably long time ("onwenselijk lang"). It held, however, that they had not exceeded the reasonable period of time within the meaning of Article 6 para. 1 of the Convention since the cases were complicated and formed part of a number of connected cases. Also, some time had been taken up by the preliminary proceedings concerning the admissibility of further prosecution by the Public Prosecutions Department. The Court stated that it would take into account the duration of the proceedings in the determination of the sentences.        When it imposed its sentence on the first applicant, the Court of Appeal held:   <Dutch>      "De valsheid in geschrift en de wijze waarop deze werden gepleegd      zijn als geraffineerd aan te merken en slechts moeizaam te      achterhalen. Op zich zelf is daarin reden gelegen aan verdachte      een hoge geldboete op te leggen. Slechts in de onwenselijk lange      duur van de procedure en de omstandigheid dat verdachte niet      eerder strafrechtelijk is veroordeeld vindt het hof aanleiding      de op zich zelf passend geachte geldboete aanzienlijk te matigen      en vast te stellen op het hierna te noemen beperkte bedrag."   <Translation>      "The fraudulent acts and the manner in which they have been      committed may be qualified as cunning and difficult to detect.      This in itself is sufficient reason to impose a severe fine on      the accused. Only in the undesirably long duration of the      proceedings and the circumstance that the accused has not      previously been convicted does the Court find reason to lower      substantially the fine it finds in itself appropriate and to fix      it at the limited sum mentioned below."        The Court of Appeal used the same reasoning when it imposed its sentence on the applicant company; it did not, however, refer to the fact that the applicant company had no previous convictions.        The first applicant was sentenced to a fine of 10,000 Dutch guilders or, in case of non-payment, 100 days' imprisonment, of which 5,000 Dutch guilders or, in case of non-payment, 50 days' imprisonment were suspended pending a probationary period of two years. The applicant company was sentenced to a fine of 50,000 Dutch guilders.        On 10 May 1991 both applicants filed an appeal in cassation.        On 8 March 1992 the lawyer of both applicants requested the President of the Amsterdam Court of Appeal to transmit the case-files at issue to the Supreme Court. On 21 September 1992 the Registry of the Supreme Court received the case-files.        The procurator general (Procureur-Generaal) at the Supreme Court advised this Court to quash the judgments of the Court of Appeal of Amsterdam on the ground that the period of time between the filing of the appeals in cassation and the judgments of the Supreme Court had exceeded the reasonable time referred to in Article 6 para. 1 of the Convention. He proposed that the cases be referred back to the Amsterdam Court of Appeal to have the consequences of this excess determined.        Following hearings in both cases on 19 January 1993 the Supreme Court, however, rejected the applicants' appeals in cassation on 25 May 1993. It held, inter alia, that the Court of Appeal had correctly found no violation of Article 6 para. 1 of the Convention. As regards the period of time between the lodging of the appeals in cassation and the judgments of the Supreme Court, that court found that neither this delay in itself nor the delay as a part of the entire proceedings had exceeded a reasonable time.   COMPLAINTS        The applicants complain under Article 6 para. 1 of the Convention that the criminal charges against them have not been determined within a reasonable time. The complaint concerns both the total duration of the proceedings of almost seven and a half years and the time taken between the various courts concerned, in particular the period between the applicants' acquittal by the Alkmaar Regional Court on 27 June 1989 and the appeal proceedings before the Court of Appeal of Amsterdam on 25 April 1991, and the period between the appeals in cassation lodged by the applicants on 10 May 1991 and the hearing of these appeals before the Supreme Court on 19 January 1993.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 13 July 1993 and registered on 23 August 1993.        On 11 January 1995 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 22 April 1995, after an extension of the time-limit fixed for that purpose.   The applicants replied on 3 July 1995.   THE LAW        The applicants complain of the length of the criminal proceedings against them. They invoke Article 6 para. 1 (Art. 6-1) of the Convention, which provides, insofar as relevant:        "1.    In the determination of ...   any criminal charge against      him, everyone is entitled to a ... hearing within a reasonable      time by a ... tribunal ..."   1.    The respondent Government argue in the first place that the applicants can no longer be regarded as victims within the meaning of Article 25 (Art. 25) of the Convention in view of the reduction of the sentences imposed on the applicants by the Court of Appeal in connection with the undesirably protracted length of the criminal proceedings.        In this respect they submit that the maximum sentences which may be imposed for the offences concerned are a six year term of imprisonment or a fine of 100,000 Dutch guilders. In the opinion of the Government, considerable leniency was exercised in sentencing, which provided a substantial level of compensation for any damage the applicants may have suffered as a result of the length of the criminal proceedings.        The applicants refute this argument, arguing that the Court of Appeal gave no indication of the extent to which the duration of the proceedings played a part. Furthermore, the fine imposed on the first applicant was also tempered because he had no previous criminal convictions. The applicants further submit that criminal courts in the Netherlands almost never impose maximum penalties, and certainly not on first offenders. In addition, they allege that the improprieties which were ultimately declared proven were of such minor importance that, if certain guidelines which came into force in 1993 had already been applicable in 1985, they would not even have led to a prosecution. The applicants conclude that there is no question of the penalties having genuinely been reduced because the reasonable time requirement had been exceeded.        The Commission recalls that an applicant can no longer claim to be a victim of the failure to observe the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of the Convention if his sentence has been reduced in an express and measurable manner after a judicial finding concerning the undue length of the proceedings (cf. No. 17661/91, Dec. 31.3.93, D.R. 74 p. 156).        The Commission notes, however, that the Court of Appeal in the present case expressly denied a violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the applicants' complaint of the length of the proceedings. The Supreme Court endorsed this view. Consequently, there is no acknowledgement, either expressly or in substance, of a violation of the Convention and in these circumstances the Commission finds it unnecessary to examine whether the sentences imposed by the Court of Appeal may be considered as constituting redress (cf. No. 21961/93, Dec. 28.2.96, unpublished).        Moreover, in respect of the time which had elapsed following the lodging of the appeals in cassation the Supreme Court found that neither this delay in itself nor the proceedings as a whole had exceeded a reasonable time.        Accordingly, the applicants can still claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention of a breach of Article 6 para. 1 (Art. 6-1) of the Convention.   2.    As regards the substance of the applicants' complaint, the Government observe in relation to the period of the preliminary judicial investigation that a massive investigation into tax fraud by five bulb-producing companies and their respective directors had taken place. The investigation and prosecution called for a meticulous checking of the records in the extensive files of the suspect companies and the questioning of many witnesses.        The Government, furthermore, do not believe that the proceedings in chambers concerning the applicants' objections in relation to the committal for trial and the summons respectively took an unreasonably long time. They reiterate that adequate redress was provided by the reduction of the sentences imposed by the Court of Appeal. The Government submit, taking into account the fact that the first applicant was not being held in detention, that it cannot be said that there was any contravention of the provisions of the Convention as a result of the passage of time between the lodging of the appeals in cassation and the hearing of these appeals.        The applicants concede that the cases at issue were originally complex in terms both of the facts and of the law. They argue, however, that the delays which occurred cannot principally be ascribed to this complexity, since, in its judgment of 6 December 1988, the Supreme Court answered the legal issues involved, and after the preliminary judicial investigation had been closed no further factual enquiries were made, with the exception of the customary factual enquiry at the hearings. Having regard, inter alia, to the unnecessarily long and unexplained periods of inactivity between the first instance proceedings and the appeal and between the appeal and the cassation proceedings, the applicants maintain their contention that the total duration of the proceedings was such that it exceeded a reasonable time.        After an examination of the complaint in the light of the parties' submissions, the Commission considers that it raises issues of fact and law requiring an examination of the merits. The application cannot, therefore, be declared 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, by a majority,        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)