BAKKER v. THE NETHERLANDS
Inadmissible
Elisabeth Palm
The applicant is a Dutch national, born in 1948, and resident in Enkhuizen. He is represented before the Court by Ms Y.E.J. Geradts, a lawyer practising in Amsterdam. a. Particular circumstances of the present case The applicant had, until mid 1991, a shop in Amsterdam where he sold telecommunication equipment. In 1989 and 1990, he traded in illegal cordless telephones, i.e. cordless telephones which were not allowed to be used in the Netherlands and other Member States of the European Union given the frequencies used by these telephones. The telephones were sold by a Belgian Company M.D.B. to a Dutch company C.C. The latter company’s director, B.B., made invoices in respect of these telephones to a fictitious person at a fictitious address in the Netherlands Antilles. In fact the telephones were not shipped to the Antilles but were directly delivered by M.D.B. to the applicant, who subsequently sold them. After a certain time, the telephones were no longer sold via C.C., but through the C.T.C. company of which B.B. was also director. On 28 August 1990, the Fiscal Intelligence and Investigation Department (Fiscale Inlichtingen en Opsporingsdienst; "FIOD") conducted a search at the C.C. company and, on the same day, went to the applicant’s shop for an inspection of the shop’s business administration. The applicant was absent that day and could not be reached. With the consent of the shop’s bookkeeper, the FIOD took away documentation concerning part of the shop’s business administration for verification purposes. On 12 June 1991, pursuant to Article 81 of the General Act on State Taxes (Algemene Wet inzake Rijksbelastingen) which authorises seizure of items for the purpose of investigation of fiscal criminal offences, the FIOD seized the entire business records of the applicant’s shop for the years 1987, 1988, 1989 and 1990. On 16 September 1991, on his own initiative, the applicant went to the FIOD in order to give a statement about his involvement in the cordless telephone trade. On the same day, he was taken into custody (inverzekeringstelling) and was subsequently held for questioning for the next three days. He was released on 19 September 1991. In the course of this investigation the applicant was questioned for the last time on 28 January 1992. On 10 January 1994 the prosecution authorities issued a summons, ordering the applicant to appear on 2 February 1994 before the Regional Court (Arrondissementsrechtbank) of Alkmaar on the charges of, inter alia, forgery, committed either alone or in association with others in respect of three invoices for telephones or, alternatively, to have been an accessory to the commission of forgery in respect of these invoices. Further charges of forgery were brought against the applicant in relation to the importation by the C.C. company for B.B. of a boat the latter had bought in Spain and the exportation of a boat by B.B. to Spain. Insofar as relevant, the charges contained in the summons read as follows: <Translation> "that he, the suspect, at various points in time in or about the period between 1 January 1989 and 10 May 1990 in the Municipality of Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise to a disadvantage, the cited false making or falsifying of this/these invoice(s) consisting in that he, the suspect, together and in association with his fellow perpetrators, at least alone, falsely and/or contrary to the truth 1. has made or had made an invoice numbered 890120, dated 04-08-89 and addressed to Tony Bosch in Aruba, concerning (the delivery of) 1020 telephones (file Case 1, see 1/D/143), and/or 2. has made or had made an invoice numbered 890215, dated 30-11-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1098 telephones (file Case 1, see 1/D/146), and/or 3. has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135); Alternatively, in case the above under 1. would not or could not lead to a conviction: Trading company C.C. B.V., at various points in time in or about the period between 1 January 1989 and 10 May 1990 in Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise (each time) to a disadvantage, the cited false making or falsifying of this/these invoice(s) consisting in that above cited company together and in association with its fellow perpetrators, at least alone, falsely and/or contrary to the truth 1. has made or had made an invoice numbered 890120, dated 04-08-89 and addressed to Tony Bosch in Aruba, concerning (the delivery of) 1020 telephones (file Case 1, see 1/D/143), and/or 2. has made or had made an invoice numbered 890215, dated 30-11-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1098 telephones (file Case 1, see 1/D/146), and/or 3. has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135), to which and/or the commission of which offences he, the suspect, in or about the period between the month January 1989 and the month May 1990, in the Municipality of Hoorn, in any case in the Netherlands, has intentionally provided the opportunity, means and/or information and/or has intentionally provided assistance by dictating, or providing, the information contained in the above cited invoice(s) to the cited company, or to one or more of its staff members; ... ." By judgment of 13 April 1994, following adversarial proceedings, the Regional Court convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to twelve months’ imprisonment, suspended pending a probation period of two years, and payment of a fine of NLG. 200,000 from which fine NLG. 50 was to be deducted for each day the applicant had spent in pre-trial detention. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. In its judgment of 15 March 1996, following adversarial proceedings, the Court of Appeal quashed the judgment of 13 April 1994, convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to six months’ imprisonment, with deduction of the time spent in pre-trial detention, suspended pending a probation period of two years, and payment of a fine of NLG. 50,000. The Court of Appeal rejected the applicant’s argument that the summons should be declared null and void in that the charges brought against him, as stated in the summons, were phrased in terms so vague that was not clear what exactly the prosecution considered the applicant had in fact done in relation to the facts at issue. The Court of Appeal held that the summons was in conformity with the relevant requirements under Article 261 of the Code of Criminal Procedure (Wetboek van Strafvordering) and that, given the text and structure of the charges, there could be no misunderstanding that it concerned the commission of forgery in different factual forms. It further found that the summons were sufficiently clear for the applicant to understand what was held against him and against what he should defend himself. Moreover, during the applicant’s trial, it had not appeared that there existed any misunderstanding on the part of the applicant as to what was held against him. As to the applicant’s argument that the prosecution should be declared inadmissible for failure to respect the reasonable time requirement under Article 6 § 1 of the Convention, the Court of Appeal held that the proceedings at issue had started on 16 September 1991 when the applicant was arrested and detained on remand. It agreed that the applicant’s case had not been dealt with within a reasonable time within the meaning of Article 6 § 1 of the convention. After having weighed the applicant’s interest in obtaining a determination of his case within a reasonable time against the interest of the prosecution, the court decided that it would accept the applicant’s prosecution but that it would take this finding into consideration in the determination of the applicant’s sentence. In the determination of the applicant’s sentence, the Court of Appeal considered that the applicant’s actions had deprived the community of an estimated amount of NLG. 900,000 in taxes, this in a large part to the applicant’s personal benefit, and that a prison sentence of six months and payment of a fine of NLG. 150,000 would be an appropriate sentence. However, on the basis of the finding that the proceedings against the applicant had exceeded a reasonable time, the Court of Appeal decided to mitigate the prison sentence by rendering it conditional and to mitigate the fine by reducing it to NLG. 50.000. The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 15 April 1997. The applicant’s complaints about the rejection by the Court of Appeal of his arguments in relation to the manner in which the charges against him had been phrased and the length of the proceedings were rejected by the Supreme Court under Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) as not prompting a determination of legal issues in the interests of legal unity and legal development. b. Relevant domestic law Article 261 of the Code of Criminal Procedure, insofar as relevant, reads as follows: <Translation> “1. On penalty of nullity, the summons shall contain a description of the fact [with which the defendant is] charged, including the approximate time and location where it has allegedly been committed. 2. The summons shall further set out the circumstances under which the fact has allegedly been committed. 3. ... “. Article 225 of the Netherlands Criminal Code, as in force at the relevant time, provides as follows <Translation> “1. Any person who counterfeits or falsifies a document from which any right or obligation may arise or which may result in any discharge of a debt, or which is to be used as evidence of any fact, such with the aim of using it or enabling others to use it as if it were genuine and unfalsified, shall, if any damage could arise from such use, be guilty of forgery and liable to a term of imprisonment not exceeding six years and a fifthcategory fine or either one of these penalties. 2. Any person who intentionally uses such a forged or falsified document as if it were genuine and unfalsified, shall, if any damage could arise from such use, be liable to the same penalty.” 