CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 octobre 2009

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He is represented before the Court by Mr   N.J.F. Snoek, a lawyer practising in Ulvenhout. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant is a businessman with a number of projects in The Hague. In 2001 several of his properties were expropriated to make way for development projects planned by the municipality ( Gemeente ). As   compensation for the expropriated properties the applicant was offered the lease of a new building, which he subsequently indicated would be used as a recreation centre ( party centrum ). As part of the compensation the municipality indicated that the applicant would be granted the requisite permits. 4.     On 4 June 2002 the applicant applied to the Burgomaster ( Burgemeester ) of The Hague for the required operating permit ( exploitatievergunning ). Owing to administrative irregularities the Burgomaster requested the applicant to submit a fresh request, which he did on 8 January 2004. 5.     At the end of 2002 the applicant received possession of the recreation centre and it was opened for business in the course of 2003. The lease agreement between the applicant and the municipality was signed in October 2003. 6.     As the applicant had previously been refused a permit under the Licensing and Catering Act ( drank- en horecavergunning ) in 2001 for another of his businesses because of criminal convictions including for employing illegal aliens, the Burgomaster requested advice pursuant to article 7 § 3 of the Public Administration (Probity Screening) Act ( Wet bevordering integriteitsbeoordelingen door het openbaar bestuur –“the   Act”). 7.     On 2 December 2004 the National Bureau for Public Administration Probity Screening ( landelijk bureau bevordering integriteitsbeoordelingen door het openbaar bestuur – “the Bureau”) recorded in its report the following criminal offences and suspicious conduct: -     employing illegal aliens; -     providing housing to illegal aliens; -     convictions, settlement penalties ( transacties ), official reports ( processen verbaal ) and notations on incidents ( mutaties ) concerning minor hygiene and environment related offences ( overtredingen ); -     problems with safety regulations in several buildings the applicant had rented or rented out; -     an unusual transaction of EUR 5,000 registered in the name of the applicant. 8.     As a consequence the Bureau advised the Burgomaster that there was a serious danger that the applicant would use the requested permit either to enjoy the proceeds of crime or to commit criminal offences. 9.     On 22 December 2004 the Burgomaster notified the applicant of his intention ( voornemen ) to reject the request for an operating permit and allowed the applicant to submit written comments ( zienswijze ) regarding his proposed decision. 10.     In his written comments the applicant explained that he had been convicted of employing illegal Turkish bakers in his bakery. There had been no one else available at the time capable of that traditional work and he would have gone bankrupt had he not employed them. The problem had been solved since and his last conviction had been in 2000. He further stated that he had not been aware that illegal aliens had been living in his houses (especially since some of the houses were jointly owned by his brother and mother as well) and all he had done had been to let or sublet them to third parties, without any knowledge of who was actually living in them. The   hygiene and environment related offences had been for such matters as not using enough water in dough mixes, a faulty exhaust and a defective waste disposal system, and had been caused by inexperienced personnel and concerned very minor offences. The breaches of the safety regulations had likewise all occurred several years previously and in the main had concerned minor issues such as defective wiring caused by persons letting his apartments trying to install radio and television cables. The allegedly unusual transaction had in fact concerned an uncle in Turkey who had worked for him and the money was in respect of pension benefits his uncle received in the Netherlands. Finally, the applicant submitted that none of the issues mentioned would arise in the recreation centre as he would only be supplying customers with a room to rent and would therefore not use any personnel of his own as the customers would be responsible for cleaning the premises. 11.     On 8 April 2005 the Burgomaster rejected the applicant’s written comments and refused to grant him an operating permit. He also ordered the recreation centre to be closed. 12.     On 26 April 2005 the applicant filed an objection ( bezwaar ) against the Burgomaster’s decision. In his objection he argued that his previous convictions for employing illegal aliens had been born out of an immediate need for Turkish bakers to keep his bakery afloat. As he had already indicated, that problem had now been solved. Furthermore, any alleged financial benefits he had reaped had no bearing on the current operation of the recreation centre. He also argued that it was unfair to attribute to him events, such as subletting to illegal aliens, which had taken place in apartments operated by his brother and his business partner Y which he knew nothing about. Nor, for that matter, could he have been aware what the persons he rented out to did when he was not there. Furthermore, the applicant submitted that quite obviously a recreation centre would not be used to house illegal aliens. The municipality had been aware of his plans for the centre and had confirmed that he would be able to obtain the required permits. 13.     On 1 August 2005 the Burgomaster rejected the applicant’s objection. He   considered that, given his history and in accordance with the Act, there was a serious danger that the applicant would use the requested permit to enjoy the proceeds of crime or to commit criminal offences. He   found that the Bureau’s report showed that the applicant had systematically, over a long period of time, provided housing and work to illegal aliens and thereby gained financial reward. There were therefore reasonable grounds to fear that the applicant would use the recreation centre for the same purposes. 14.     On 14 September 2005 the applicant lodged an appeal with the Regional Court ( rechtbank ) of The Hague against the Burgomaster’s decision. He   submitted that the provisions of the Act violated Article 6 § 2 of the Convention as his request for an operating permit had been rejected to a large extent on the basis of facts and suspicions which had never led to a criminal conviction. In particular, the applicant argued that although he had never been convicted of housing illegal aliens, the suggestion that he had done so had been a weighty factor in the Burgomaster’s decision to reject his request for a permit. Furthermore, the aliens had been housed by tenants who had sublet the apartments without his knowledge and he had put an end to the practice as soon as he had been made aware of it. He also claimed that he could not be held responsible for events that had taken place in apartments belonging to his brother. Finally he submitted that the Burgomaster had also taken into account anonymous tip-offs from illegal aliens visiting the recreation centre even though that information had never led to any arrest, let alone a conviction. 15.     On 3 March 2006 the Regional Court dismissed the applicant’s appeal. It   considered that the serious danger referred to by the Bureau in its report was based mainly on the commission of criminal offences and the use of the proceeds of such offences. It had attached only minor importance to the environmental and safety related offences. The court therefore considered that it had been reasonable for the Burgomaster to conclude that the requested permit would be used by the applicant either to enjoy the proceeds of crime or to commit criminal offences. It held that in the light of the Bureau’s advice there were sufficient reasons to conclude that the applicant and his brother worked so closely together as to make it legitimate to hold the applicant accountable for his brother’s activities. It further found that the illegal aliens had been present in premises above or next to a building the applicant owned and frequently visited, so that it was unlikely that he had been unaware of their presence. The court rejected the applicant’s argument that these previous events would have no bearing on the activities for which the applicant required the permit as it considered that the Burgomaster had rightly assumed that the permit would simply be used to enable the applicant to carry on as before. The fact that most of the offences had been committed some years previously was irrelevant as the applicant had been a recidivist. Finally the court considered that the provisions of the Act did not violate Article 6 § 2 as they did not entail any criminal procedure for the purpose of establishing a person’s guilt of a criminal offence. It had thus been reasonable for the Burgomaster to refuse the applicant the requested permit. 16.     In accordance with the judgment of the Regional Court, the Burgomaster notified the applicant on 13 March 2006 that the recreation centre would be closed pursuant to his letter of 8 April 2005. 17.     On 18 April 2006 the applicant lodged an appeal to the final appellate court: the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ; “the Division”). In   his appeal he argued, inter alia , that the refusal of a permit had a punitive character for the purposes of Article 6 of the Convention as, even though he had not been convicted of any criminal offences for a number of years, he had not been allowed to continue with his business activities. As he had not even been charged with a number of the offences mentioned in the Bureau’s and Burgomaster’s reports, previous events could in practice be held against him for years to come; accordingly, the provisions of Article 6, and in particular the presumption of innocence, had, in his submission, been violated. Specifically, he had not enjoyed any of the rights of the defence mentioned in Article 6 and had basically been handed a life-long ban on conducting his business. The applicant noted that no criminal offences had ever been committed at the recreation centre. He further argued that the fact that he had a business partnership with his brother could not mean that all his brother’s acts (even those performed outside the partnership) were attributable to the applicant as well. The applicant also presented further arguments as to why there could be no serious danger that the requested permit could lead to his employing illegal aliens as the entire idea of the recreation centre was that customers would organise their own festivities. 18.     On 22 November 2006 the Division rejected the applicant’s appeal. It   held that Article 6 § 2 of the Convention only applied to criminal procedures whereas the procedures under the Act were not intended to establish a person’s guilt of a criminal offence. The purpose of the Act was to avoid administrative bodies unwittingly facilitating criminal activities and the refusal of a permit was not intended as a punitive sanction to encourage certain behaviour. Accordingly, the presumption of innocence did not come into play as there was no criminal charge involved. The   Division added that as the refusal of the permit was to be seen as an administrative act, there had been no interference with the non bis in idem principle either. It rejected the applicant’s argument that the offences in question had been committed in the distant past and should have had no bearing on his request for an operating permit. It also noted the importance of action to prevent the employment of illegal aliens. The Division noted that the Regional Court had correctly interpreted the business partnership of the applicant and his brother as well as the consequences of the partnership for the applicant. Finally, it concluded that it had been reasonable for the Burgomaster to conclude that the criminal offences had been committed in pursuit of activities that could also be exploited if the permit was issued. B.     Relevant domestic law and practice 19.     The Public Administration (Probity Screening) Act entered into force on 1 June 2003. According to the explanatory memorandum to the Act ( Memorie van Toelichting ; House of Representatives, no. 26, 883, 1999-2000 session, no. 3), its main purpose is to create an effective instrument to help administrative bodies avoid unwittingly facilitating criminal activities, such as the illegal transport of goods. 20.     Pursuant to article 3 of the Act, an administrative body can deny a request for a permit or revoke a previously granted permit if there exists a serious danger that the permit will be used either to commit criminal offences or to enjoy the proceeds of crime. 21.     Article 3 of the Public Administration (Probity Screening) Act reads: “1.     In so far as administrative authorities have acquired such power by or pursuant to an Act of Parliament they may refuse to make a requested decision or may cancel a decision that has been made if there is a serious danger that the decision could in part be used: (a)     to enjoy proceeds obtained or yet to be obtained from criminal offences that have been committed, or (b)     to commit criminal offences. 2.     In so far as the serious danger referred to in subparagraph 1, opening words and (a) is concerned, the degree of danger is determined on the basis of: (a)     facts and circumstances that indicate or give rise to a reasonable suspicion that the person concerned is connected with criminal offences as referred to in subparagraph 1 (a); (b)     in the event of suspicion, the level thereof; (c)     the nature of the connection; and (d)     the amount of the proceeds obtained or yet to be obtained. 3.     In so far as the serious danger referred to in subparagraph 1, opening words and (b) is concerned, the degree of danger is determined on the basis of: (a)     facts and circumstances that indicate or give rise to a reasonable suspicion that the person concerned is connected with criminal offences that have been committed in the course of activities that correspond or are related to activities for which the decision has been requested or given; (b)     in the event of suspicion, the level thereof; (c)     the nature of the connection; and (d)     the number of criminal offences committed. 4.     The person concerned is deemed to be connected with criminal offences as referred to in subparagraphs 2 and 3 if: (a)     he has himself committed these criminal offences; (b)     he is or has been directly or indirectly in charge of, has or has had control over or provides or has provided capital to a legal entity within the meaning of article 51 of the Criminal Code ( Wetboek van Strafrecht ) which has committed these criminal offences;or (c)     another person has committed these criminal offences and this person is or has been directly or indirectly in charge of, has or has had control over or provides or has provided capital to the person concerned or is in a joint-business venture with him. 5 .     The refusal or cancellation referred to in subparagraph 1 shall take place only if this is proportionate to: (a)     the degree of danger, and (b)     in so far as the serious danger referred to in subparagraph 1 (b) is concerned, the seriousness of the criminal offences. 6.     Administrative authorities shall have the same power of refusal or cancellation as referred to in subparagraph 1 if facts and circumstances indicate or give rise to a reasonable suspicion that a criminal offence has been committed in order to obtain the decision applied for or made. The refusal or cancellation shall take place only if it is at least proportionate, in the event of suspicions, to the level thereof and to the seriousness of the criminal offence. 7.     If no serious danger, as referred to in subparagraph 1, exists, the administrative authority may, in the case of a lesser degree of danger, attach conditions to the decision. Such conditions shall be designed to remove or limit the danger in question.” 22.     In accordance with chapter 3 of the Act the above procedure is executed by a separate Bureau, at the request of an administrative body, by consulting a number of public and classified databases as well as the criminal records of the person requesting the permit. 23.     In the explanatory memorandum to the Act, express reference is made to the provisions of Article 6 of the Convention. It was considered that any person whose request for a permit was rejected or whose permit was revoked under the Act had the normal avenues of appeal available under the General Administrative Law Act ( Algemene wet bestuursrecht ), and that this complied with the provisions of Article 6 § 1. The   memorandum further stated that Article 6 § 2 was not applicable to the procedures of the Act as it only applied to cases where a person was liable to have criminal charges brought against him and had to be considered innocent until proven guilty according to law whereas the conclusions of the Bureau and subsequent decisions of the administrative body were not intended to establish anyone’s guilt of a criminal offence. 24.     The judgment of the Council of State concerning the present application was the first ruling on the application of the Act. COMPLAINTS 25.     The applicant complained under Article 6 § 1 of the Convention that he did not receive a fair trial as most of the alleged convictions and criminal offences occurred years previously. There had thus been a violation of the reasonable-time requirement and his request for a permit had been refused on the basis of a law that did not require proof beyond reasonable doubt or even a preponderance of the evidence. The applicant further complained under Article 7 that the provisions of the Act allowed the Burgomaster to refuse him a permit on the basis of mere suspicion, thus making it unclear which offences carried what penalty. 26.     The applicant also alleged a violation of the presumption of innocence as guaranteed by Article 6 § 2 as offences were held against him of which he had not been criminally convicted and which might have only occurred in the future. 27.     Finally, by a letter of 25 May 2008, the applicant further complained under Article 1 of Protocol No. 1 that the rejection of his request for a permit denied him the peaceful enjoyment of his possessions. THE LAW 28.     The applicant raised complaints under Article 6 § 1 and Article 7 of the Convention in relation to the decision to refuse him a business permit. 29.     The Court reiterates that in order to satisfy the requirements of Article   35   § 1 of the Convention, the applicant must have raised his complaints, at least in substance, and in accordance with the formal requirements of domestic law, before the national courts (see, among other authorities, Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). The   Court observes that the applicant did not raise the present complaints, either expressly or in substance, in the domestic proceedings. 30.     It follows that this part of the application is inadmissible for            non-exhaustion of domestic remedies within the meaning of Article   35   §   1   of the Convention and must be rejected pursuant to Article   35   §   4. 31.     The applicant further complained that the procedure under the Public Administration (Probity Screening) Act violated his right to presumption of his innocence as laid down in Article 6 § 2, which reads as follows: “2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 32.     The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. 33.     The applicant also wished to complain of a breach of his rights as guaranteed by Article 1 of Protocol No. 1. He did so in a letter dated 25   May 2008. 34.     The Court observes that the final decision within the meaning of Article   35 § 1 of the Convention was taken on 22 November 2006 whereas this complaint was introduced more than six months later. 35.     It follows that this complaint has been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaint concerning the alleged breach of the presumption of innocence; Declares the remainder of the application inadmissible.   Santiago Quesada   Josep Casadevall   Registrar   President