CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1998

.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. 34549/97                       by Mathijs H. and Antonius W.M. MEULENDIJKS                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 1 July 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 9 January 1997 by Mathijs H. and Antonius W.M. MEULENDIJKS against the Netherlands and registered on 17 January 1997 under file No. 34549/97;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:     THE FACTS        The applicants are both Dutch nationals, born in 1920 and 1957 respectively, and reside in Heeze, the Netherlands. The applicants jointly run a timber merchant's business. In the proceedings before the Commission, they are represented by Mr J.C.B. Geerts, a lawyer practising in Rosmalen.        The facts of the case, as submitted by the applicants, may be summarised as follows.   a.    The criminal investigation and proceedings        On 7 December 1988, a preliminary judicial investigation (gerechtelijk vooronderzoek) was opened against the applicants' company on suspicion of forgery committed for fiscal purposes. On 13 December 1988, in the context of this investigation, the applicants' business premises were searched and a major part of the office records was seized by the investigating authorities.        By letters of 16 and 23 December 1988, the applicants' lawyer unsuccessfully requested the public prosecutor to return the items seized on 13 December 1988 in order to allow the company to continue its business activities.        At some unspecified point in time, the applicants' lawyer was informed by the investigating judge (rechter-commissaris) that the seized office records would be returned after the final examination (slotverhoor). This final examination took place on 28 February 1991.        On 19 March 1991, the applicants' firm, as a separate legal person, received a formal notification that no further criminal proceedings would be brought against it (kennisgeving van niet verdere vervolging).        Since the seized office records had still not been returned, the applicants' lawyer informed the investigating judge by letters of 25 March and 8 April 1991 that, if the office records would not be returned before a certain date, a formal complaint (beklag) about the continuation of the seizure would be filed with the Regional Court. At some later point in time part of the seized office records was returned. The return of the remaining part was refused.        At some unspecified point in time, the first applicant was summoned to appear on 23 May 1991 before the Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch on charges under Article 225 of the Criminal Code (Wetboek van Strafrecht) and Article 68 of the General State Taxation Act (Algemene Wet inzake Rijksbelastingen). Criminal proceedings were also brought against the second applicant.        In the subsequent criminal proceedings against the first applicant, the Court of Appeal (Gerechtshof) of 's-Hertogenbosch, in its judgment of 27 April 1994, declared the prosecution inadmissible for non-compliance with the reasonable time requirement under Article 6 para. 1 of the Convention. The criminal proceedings brought against the second applicant ended with the decision of the Court of Appeal of 27 April 1994 in which the summons against the second applicant was declared null and void also on grounds of failure to respect the reasonable time requirement.   b.    The proceedings on social security contributions        By letters of 7 July 1989 and 28 March 1990, the applicants objected to correction demands (correctienota's) over the years 1985- 1988 for social security contributions which had been sent by the Occupational Association for the Timber and Furniture Industry and Timber Wholesale Trade (Bedrijfsvereniging voor de Hout- en Meubelindustrie en Groothandel in Hout, hereinafter referred to as "the Occupational Association"). The applicants denied having paid undeclared wages or having been involved in excessive reimbursement of expenses. In these letters, the applicants requested the Occupational Association to give a formal confirmation (voor beroep vatbare beschikking) of these correction demands.        On 7 March 1990, the Occupational Association requested the applicants to substantiate their objections to the demands. After having requested a delay, the applicants replied to this request on 30 August 1990 and further offered a compromise solution. On 31 October 1990, after part of the seized office records had been returned to them, the applicants submitted additional reasons for their objections to the demands to the Occupational Association.        On 7 November 1990, an administrator of the Occupational Association drafted an internal report and, on 20 June 1991 the so- called "Small Commission" (Kleine Commissie) of the Occupational Association approved the internal advice.        On 3 July 1991, the Occupational Association issued the formal confirmation with the reasons for its decision. According to this decision, the applicant had to pay 288,224.28 Dutch guilders for social security contributions on grounds of excessive reimbursement of expenses which were considered as wages by the Occupational Association and payment of undeclared wages.        The applicants filed an appeal against this decision with the Regional Court of 's-Hertogenbosch on 29 July 1991 and further substantiated their grounds for appeal on 27 August 1991. On 10 January 1992, the Occupational Association replied in writing to the applicants' submissions on appeal. The applicants responded in writing on 29 June 1992 and the Occupation Association's further written reaction was submitted on 18 February 1993.        Following a hearing held on 6 April 1993, the Regional Court rejected this appeal by judgment of 17 May 1993. The applicant filed a further appeal with the Central Appeals Tribunal (Centrale Raad van Beroep).        On 18 June 1993, the applicants submitted their grounds on appeal to the Central Appeals Tribunal, to which the Occupational Association replied on 24 December 1993. On 6 January 1995, the applicants made further submissions to the Central Appeals Tribunal to which the Occupational Association replied on 20 January, 12 October and 7 November 1995. The applicant submitted further information on 10 May 1996.        Following a hearing held on 30 May 1996 in the course of which three witnesses and an expert were heard upon the applicants' request, the Central Appeals Tribunal, in its judgment of 11 July 1996, quashed both the decision of 3 July 1991 and the judgment of 17 May 1993.        Insofar as the applicants had complained of the delay between their request for and the issuance of the formal confirmation by the Occupational Association, the Court of Appeal - in the light of the European Court's findings in its Schouten and Meldrum v. the Netherlands judgment of 9 December 1994 - noted that, following the applicants' request of 7 July 1989, the Occupational Association had requested the applicants on 7 March 1990 to substantiate their objections and that, after having requested a delay, the applicants had replied to this request on 30 August 1990 and had further offered a compromise solution. The Central Appeals Tribunal further noted that on 31 October 1990 the applicants sent additional reasons for their objections, that an internal report was drafted on 7 November 1990 which was submitted to the Small Commission of the Occupational Association and that the formal confirmation was issued on 3 July 1991.        Noting the complexity of the case and the contents of the applicants' submissions, the Central Appeals Tribunal held that, although the decision process took place with little diligence, the Occupational Association had not acted so slowly that Article 6 of the Convention had been violated.     COMPLAINTS        The applicants complain under Article 6 of the Convention that there has been an unreasonable delay between their request for formal confirmation of the decision of the Occupational Association and the actual issuance of this confirmation.        The applicants further complain under Article 6 of the Convention that the length of the subsequent proceedings before the Regional Court and the Central Appeals Tribunal exceeded a reasonable time.        The applicants finally complain under Article 6 of the Convention that, in the proceedings on the correction demands, the principle of equality of arms has been violated in that during these proceedings, despite their repeated requests to this effect, they had no full access to their seized office records which contained relevant information for the proceedings on the correction demands.     THE LAW        The applicants complain under Article 6 (Art. 6) of the Convention that the proceedings which ended with the judgment of 11 July 1996 of the Central Appeals Tribunal exceeded a reasonable time and that they did not receive a fair trial in that the principle of equality or arms was disrespected in these proceedings.        Article 6 (Art. 6) of the Convention, insofar as relevant, reads:        "1.    In the determination of his civil rights and obligations      ... everyone is entitled to a fair ... hearing within a      reasonable time by a ... tribunal established by law."        Insofar as the applicants complain of the fairness of the proceedings at issue, the Commission notes that the Central Appeals Tribunal, in its judgment of 11 July 1996, quashed both the decision of 3 July 1991 and the judgment of 17 May 1993.        In these circumstances, the Commission is of the opinion that the applicants can no longer claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention as regards the fairness of these proceedings.        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        Insofar as the applicants complain of the length of the proceedings, in particular of the delay between 7 July 1989, when they submitted their request to the Occupational Association, and 3   July 1991, when this formal confirmation was issued, the Commission refers to the Schouten and Meldrum against the Netherlands judgment of 9 December 1994 (Series A no. 304). It decides to give notice of this part of the application to the respondent Government in accordance with Rule 48 para. 2(b) of its Rules of Procedures and to invite them to submit their observations in writing on the admissibility and merits on this part of the application.        For these reasons, the Commission,        DECIDES TO ADJOURN the examination of the applicants'      complaints in respect of the length of the proceedings; and        unanimously,      DECLARES INADMISSIBLE the remainder of the application.      M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber