CEDH · CASELAW;REPORTS;ENG — 15 octobre 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 21351/93                                    J.J.                                   against                               the Netherlands                          REPORT OF THE COMMISSION                        (adopted on 15 October 1996)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 16-28). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 16-21) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 22-28) . . . . . . . . . . . . . . . . . . . . . 3   III.   OPINION OF THE COMMISSION       (paras. 29-39). . . . . . . . . . . . . . . . . . . . . . . . 5         A.    Complaint declared admissible            (para. 29) . . . . . . . . . . . . . . . . . . . . . . . 5         B.    Point at issue            (para. 30) . . . . . . . . . . . . . . . . . . . . . . . 5         C.    As regards Article 6 para. 1 of the Convention            (paras. 31-38) . . . . . . . . . . . . . . . . . . . . . 5              CONCLUSION            (para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6   DISSENTING OPINION OF MR. P. LORENZEN JOINED BY . . . . . . . . . . 7 MM. S. TRECHSEL, G. JÖRUNDSSON AND M.P. PELLONPÄÄ   APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . 9   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Dutch citizen, born in 1942 and resident in Weiteveen, the Netherlands. He is a professional tax consultant.   3.     The application is directed against the Netherlands.   The respondent Government were represented by their Agent, Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.   4.     The case concerns the applicant's complaint of unfair criminal proceedings in that he had no opportunity to respond to the written submissions of the Advocate General at the Supreme Court. The applicant invokes Article 6 para. 1 of the Convention.   B.     The proceedings   5.     The application was introduced on 12 November 1992 and registered on 9 February 1993.   6.     On 29 November 1994, the case was transferred from the Second Chamber to the Plenary Commission, by decision of the latter. On 7 December 1994, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.     The Government's observations were submitted on 28 February 1995. The applicant did not submit observations in reply but he informed the Commission by letter of 3 July 1995 that he wished to pursue his application.   8.     On 16 October 1995, the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention in respect of his not having had the opportunity to respond to the written observations of the Advocate General at the Supreme Court. It declared inadmissible the remainder of the application.   9.     The text of the Commission's decision on admissibility was sent to the parties on 27 October 1995 and they were invited to submit such further information or observations on the merits as they wished. Neither party availed itself of this possibility.   10.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ   12.    The text of this Report was adopted on 15 October 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   14.    The Commission's decision on the admissibility of the application is annexed hereto.   15.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   16.    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.   17.    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").   18.    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.   19.    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. He further argued that the levying of court registration fees in cases of this kind was contrary to Article 6 para. 1 of the Convention.   20.    In the proceedings before the Supreme Court the Advocate General (Advocaat-Generaal) at the Supreme Court submitted his written observations (conclusie) on 19 November 1991. These observations comprised of 19 pages and advised the Supreme Court to reject the appeal in cassation.   21.    On 17 June 1992, the Supreme Court rejected the appeal in cassation.   B.     Relevant domestic law   22.    Pursuant to Section 23 of the National Taxation Act (Algemene Wet inzake Rijksbelastingen) 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.   23.    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.   24.    Parties to tax proceedings are the tax authorities and the natural or legal person whose taxes are assessed.   25.    After the hearing before the Supreme Court, or in the absence of a hearing after the written submissions of the parties to the proceedings have been received by the Registrar of the Supreme Court, the Procurator General, if he has indicated that he wishes to be heard, will submit his written observations to the Supreme Court (Section 24 WARB). After the submission of these observations the Supreme Court will deliberate in chambers (raadkamer). The Procurator General does not participate in these deliberations.   26.    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 questions of fact, refer the case back to the Court of Appeal which took the impugned decision or to another Court of Appeal (Section 25 WARB).   27.    According to Section 3 of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) the functions of the public prosecution department (openbaar ministerie) are carried out ("wordt uitgevoerd") by the procurator general at the Supreme Court, by the procurators general at the Courts of Appeal (gerechtshoven) and, insofar as the lower courts are concerned, by the public prosecutors (officieren van justitie). Pursuant to Section 4 of the Judicial Organisation Act the public prosecution department has to be heard in cases where legal provisions require this.   28.    The Procurator General at the Supreme Court, or the Advocates General (Advocaten Generaal) who are also competent to fulfil his functions, submits observations to the Supreme Court in, inter alia, criminal and civil cases to advise this Court. These observations are submitted in the shape of a treatise containing references to case-law and legal literature relevant to the question of law at issue (G.J.M. Corstens, Het Nederlandse Strafprocesrecht, Gouda Quint b.v. Arnhem 1993, pages 106 and 110).   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   29.    The Commission has declared admissible the applicant's complaint of unfair criminal proceedings in that he did not have the opportunity to respond to the written observations of the Advocate General at the Supreme Court.   B.     Point at issue   30.    Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   31.    Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:         "1.   In the determination ... of any criminal charge against       him, everyone is entitled to a fair ... hearing ... by [a]       tribunal ..."   32.    The applicant argues that in the proceedings before the Supreme Court he should have been given the opportunity to respond to the written observations of the Advocate General at the Supreme Court.   33.    In their observations on the admissibility and merits of the application of 28 February 1995, the Government submitted that following the Borgers v. Belgium judgment (Eur. Court HR, judgment of 30 October 1991, Series A no. 214-B), the Supreme Court had decided that in criminal cases the written observations of the Procurator General or Advocate General at the Supreme Court would always be sent to the persons concerned before judgment was given. However, in the opinion of the Government, the proceedings at issue did not concern the determination of a criminal charge since the sole object of the deliberations was to determine whether the Court of Appeal had been right in declaring inadmissible the applicant's appeal against the tax assessment with a 100% surcharge because he had failed to pay the court fees. Therefore, Article 6 para. 1 (Art. 6-1) of the Convention did not require that the applicant be given the opportunity to reply to the written observations of the Advocate General.   34.    The Commission finds that 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.   35.    The Commission has had regard to the Court's judgments in the cases of Borgers v. Belgium (loc. cit.) and Vermeulen v. Belgium (judgment of 20 February 1996, to be published in Reports 1996). The Commission notes furthermore that the function of the public prosecution department at the Supreme Court is comparable to that of the procureur général at the Belgian Court of Cassation.   36.    However, contrary to the facts in the Borgers case, the Procurator General or the Advocate General in the Netherlands does not take part in the deliberations of the Supreme Court (see para. 25). The Commission notes that the Court attached considerable relevance to this aspect in its Borgers judgment since it found above all that the participation of the avocat général in the deliberations of the Cour de Cassation had increased the inequality of arms. However, in its Vermeulen v. Belgium judgment, the Court found that the impossibility to reply to the submissions of the avocat général in itself amounted to a violation of Article 6 para. 1 (Art. 6-1) (of the Convention and that this breach in question was aggravated by the avocat général's participation in the court's deliberations (loc. cit., paras. 33, 34).   37.    The Commission notes in the present case that in his written observations the Advocate General advised the Supreme Court to reject the applicant's appeal in cassation. The applicant was not given the opportunity to reply to these observations, nor did the relevant legal provision provide for a copy of the observations to be transmitted to the applicant in order for him to submit observations in reply (see para. 25).   38.    Like the Court in the Borgers judgment, the Commission cannot see the justification for such a restriction on the rights of the defence in the present case. Once the Advocate General had made submissions unfavourable to the applicant, the latter had a clear interest in being able to submit his observations on them before argument was closed (loc. cit., p. 32, para. 27). Consequently, the Commission finds that the proceedings at issue did not comply with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         CONCLUSION     39.    The Commission concludes, by 26 votes to 4, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission                                                           (Or. English)               DISSENTING OPINION OF MR. P. LORENZEN JOINED BY            MM. S. TRECHSEL, G. JÖRUNDSSON AND M.P. PELLONPÄÄ         I regret that I am not able to share the conclusion of the majority that there has been a violation of Article 6 para. 1 of the Convention in the present case.         The proceedings before the Court of Appeal concerned an assessment of the applicant's income tax including a 100% surcharge which had been imposed on the basis that the applicant's failure to pay sufficient taxes was due to his gross negligence or intent. I agree with the majority that those proceedings - taken into account the punitive character of the surcharge - concerned the determination of a "criminal charge" within the meaning of Article 6 para. 1 of the Convention (cf. Eur. Court HR, Bendenoun v. France judgment of 24 February 1994, Series A no. 284, p. 20, para. 47). Due to the applicant's failure to pay a court registration fee of 75 Dutch guilders his appeal was, however, declared inadmissible. The Court of Appeal rejected an objection against this decision as ill-founded and never considered the merits of the criminal proceedings. The appeal in cassation to the Supreme Court concerned only the legality of the levying of a court registration fee and the question whether the applicant, in all circumstances, could be held responsible for the non- payment of the fee.         In my opinion, a decision of a national court regarding the formal requirements for the lodging of an appeal in a criminal case do not involve the determination of a criminal charge within the meaning of Article 6 para. 1 of the Convention. Whether they concern the payment of registration fees, the observance of time-limits, the production of certain documents or other similar requirements should not be considered decisive. The Commission has constantly held that a rejection of claims on procedural grounds is neither a determination of a dispute on civil rights and obligations nor of a criminal charge (cf. e.g. No. 12624/87, Dec. 10.7.89, D.R. 62 p. 207). I see no reason to depart from this case-law which is based on careful considerations with regard to the reasonableness of the safeguards under Article 6 para. 1 of the Convention. There are no valid reasons to widen the scope of applicability of that provision so as to include preliminary decisions relating to procedural conditions for court proceedings. Furthermore, national courts may as a result encounter considerable difficulties in securing an efficient administration of justice - not least in respect of the right to a public hearing. In my view, the Commission and Court of Human Rights also have to bear in mind the enormous workload of most of the tribunals in the High Contracting Parties and avoid imposing unnecessary burdens upon them by an excessive interpretation of Article 6.         The fact that the Dutch Supreme Court was apparently empowered under Section 25 of the WARB to rule on the merits of the case, if the non-payment of the registration fee had not been considered a procedural obstacle, cannot lead to a different result. Even assuming that the Supreme Court in the circumstances of the present case - where the Court of Appeal had not ruled on the merits - might in principle have exercised that power, it did in fact not do so.         For these reasons I do not find a violation of Article 6 para. 1 of the Convention in the present case.