CEDH · CASELAW;REPORTS;ENG — 9 avril 1997

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The applicant company is a Dutch company with limited liability, having its registered seat in Andijk. The first applicant is one of the directors of the applicant company.     The applicants are represented before the Commission by Mr F. van Schaik, a lawyer practising in Berkel en Rodenrijs, the Netherlands.     The Government of the Netherlands are represented by their Agent, Mr H. von Hebel of the Netherlands Ministry of Foreign Affairs.   2.   The application, which relates to the length of proceedings (Article 6 para. 1 of the Convention) was communicated to the Government on 11 January 1995. Following an exchange of written observations, it was declared admissible on 15 May 1996. The decision on admissibility is appended to this Report.   3.   Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (Second Chamber), after deliberating, adopted this Report on 9 April 1997 in accordance with Article 31 para. 1 of the Convention, the following members being present:       Mrs.   G.H. THUNE, President     MM.   J.-C. GEUS       G. JÖRUNDSSON       A. GÖZÜBÜYÜK       J.-C. SOYER       H. DANELIUS       F. MARTINEZ       M.A. NOWICKI       I. CABRAL BARRETO       J. MUCHA       D. ŠVÁBY       P. LORENZEN       E. BIELI?NAS       E.A. ALKEMA   4.   In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Netherlands.   5.   The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.   ESTABLISHMENT OF THE FACTS   6.   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.   7.   On 2 December 1985 the home of the first applicant and the premises of the applicant company were searched.   8.   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.   9.   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).   10.   On 1 June 1987 the applicant company lodged an objection against this decision with the Regional Court (Arrondissementsrechtbank) of Alkmaar. Following a hearing on 25 June 1987, the Regional Court in chambers decided on 30 June 1987 to discontinue the proceedings (buitenvervolgingstelling) against the applicant company. The public prosecutor appealed against this decision on the same day.   11.   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.   12.   On 13 July 1987 the first applicant lodged an objection against the indictment with the Alkmaar Regional Court. A hearing took place on 4 August 1987. On 13 August 1987 the Regional Court in chambers decided to discontinue the proceedings against the first applicant. The public prosecutor appealed against this decision on 14 August 1987.   13.   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.   14.   The applicants' appeals in cassation against the Court of Appeal's decisions were rejected by the Supreme Court (Hoge Raad) on 6 December 1988.   15.   On 13 June 1989 hearings took place before the Alkmaar Regional Court in the cases concerning the criminal charges against the applicants.   16.   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.   17.   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.   18.   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.   19.   When it imposed its sentence on the first applicant, the Court of Appeal held:   <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 fact 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."   20.   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.   21.   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.   22.   On 10 May 1991 both applicants filed an appeal in cassation.   23.   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. He also requested copies of the Court of Appeal's judgments of 6 May 1991 which, in spite of repeated requests, had not yet been made available. On 21 September 1992 the Registry of the Supreme Court received the case-files.   24.   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.   25.   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.   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible   26.   The Commission has declared admissible the applicants' complaint that the criminal proceedings against them were not determined within a reasonable time.   B.   Point at issue   27.   The only point at issue is whether the length of the proceedings complained of has exceeded the "reasonable time" requirement contained in Article 6 para. 1 (Art. 6-1) of the Convention.   C.   As regards Article 6 para. 1 (Art. 6-1) of the Convention   28.   The relevant part of the Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:     "1.   In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ..."   29.   The Government submit in relation to the period of the preliminary judicial investigation that a massive investigation into tax fraud by five bulb- growing 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. They further maintain that the applicants received compensation for the protracted length of the proceedings up to the judgment of the Court of Appeal. Finally, they deny that there was a breach of Article 6 para. 1 (Art. 6- 1) as a result of the passage of over twenty months between the lodging of the appeal in cassation and this appeal being heard.   30.   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 settled 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.   31.   The Commission notes that the proceedings at issue started on 2 December 1985 when the first applicant's house and the applicant company's premises were searched. They ended with the Supreme Court's judgment of 25 May 1993 and thus lasted seven years and almost six months.   32.   The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   33.   The Commission observes that it is not disputed between the parties that the case was of a complex and elaborate character. The suspicion against the applicants concerned white collar crime, such as forging documents and fraud. Such offences are often purposely conducted by means of complex transactions in order to escape the control of the investigating authorities. The investigations at issue involved five companies and their directors.   34.   The Commission further considers that the applicants did not unreasonably contribute to the overall length of the criminal proceedings by lodging objections against their committal for trial, although this may have resulted in a certain delay.   35.   In respect of the conduct of the Dutch authorities, the Commission notes that the period between the lodging of the appeals on 11 July 1989 by the public prosecutor against the judgments of the Regional Court and the hearing on appeal before the Court of Appeal on 25 April 1991 was one year and nine and a half months. It is true that the Court of Appeal mitigated the sentence which it imposed on the applicants in view of the "undesirable" length of the proceedings. However, the Commission observes that this mitigation cannot be measured since the Court of Appeal did not indicate what sentence it would have imposed in ordinary circumstances. Furthermore, in respect of the first applicant the Court of Appeal mitigated the sentence also in view of the fact that the conviction concerned a first offence.   36.   A subsequent delay occurred after the applicants had filed their appeals in cassation on 10 May 1991. It appears that the applicants were not provided with copies of the Court of Appeal's judgments of 6 May 1991 until after 8 March 1992 when their lawyer wrote to the President of the Court of Appeal. Furthermore, the case-files were not received by the Registry of the Supreme Court until 21 September 1992, i.e. more than one year and four months later. The Supreme Court delivered its judgments two years and two weeks after the appeals in cassation had been lodged on 25 May 1993.   37.   The Commission does not consider that these delays can be said to be related to the complex nature of the criminal proceedings at issue. It notes, furthermore, that the Government have offered no explanation for these delays.   38.   The Commission reiterates that Article 6 para. 1 (Art. 6-1) of the Convention imposes on the Contracting States the duty to organise their legal system in such a way that their courts can meet each of its requirements (cf. Eur. Court HR, Bunkate v. the Netherlands judgment of 26 May 1993, Series A no. 248-B, p. 31, para. 23).   39.   Having regard to all the circumstances and the overall length, the Commission considers that in view of the delay which had already occurred at the appeal stage and the subsequent delay in the proceedings before the Supreme Court, the criminal proceedings against the applicants were not determined within a reasonable time.     CONCLUSION   40.   The Commission concludes, by 13 votes to 1, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber